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2015 (1) TMI 221 - HC - VAT and Sales TaxDetermination of State for chargeability of goods - Whether the Tribunal was right in holding that the goods which were sold and made chargeable to tax in the State of Maharashtra are chargeable to tax in Gujarat since the payment thereof was made within the State of Gujarat – Held that:- The tax liability against the appellant has been confirmed by holding that the goods which were purchased by the appellant in public auction held in State of Maharashtra have in fact been sold in the State of Gujarat - on inquiry and investigation by the authority it has been found that all those dealers in whose favour alleged sales / transactions have taken place are non-existence and even they are not registered dealers with the sales authority in the State of Maharashtra – the goods have been sold in the State of Gujarat and in favour of dealers in the State of Gujarat and even payments have also been received in the State of Gujarat - even the appellant is not registered dealer in the State of Gujarat and therefore, appellant could not have sold the goods in the State of Maharashtra - Thus, as such the appellant could not prove and/or establish that in fact goods purchased in the State of Maharashtra were in fact sold to the dealers in the State of Maharashtra - when there are concurrent findings of the facts given by both Tribunal as well as AO, which are on appreciation of evidence, which are neither shown or demonstrated to be perverse, it cannot be said that any substantial question of law arise - Under appellate jurisdiction u/s 78 of the Act, it is not required to re-appreciate the entire evidence on record and / or interfere with the finding given by the authority below which are on appreciation of evidence unless it has been demonstrated that the findings are perverse and / or contrary to the evidence on record. The Tribunal has not held that the goods were chargeable to tax in Gujarat solely on the ground that the payment thereof was made within the State of Gujarat - The entire evidence on record and bundle of facts are required to be considered - The AO as well as Tribunal has held that goods were sold and chargeable to tax in Gujarat on appreciating the entire evidence on record and considering the entire facts and circumstances of the case which are referred to herein above, more particularly, identity and / or existence of the dealers to whom the goods were alleged to be sold in State of Maharashtra is not established; that those dealers in the State of Maharashtra to whom the goods were alleged to have been sold are not registered dealers in the State of Maharashtra; that there are transactions with the dealers in the State of Gujarat; payment with respect to the goods sold is received in the State of Gujarat; that the appellant itself is not registered dealer in the State of Maharashtra and therefore, could not have even sold the goods in the State of Maharashtra. Assessment order barred by jurisdiction or not – Bar of limitation – Held that:- The competent authority did pass an order of extension of period of limitation in exercise of proviso to subsection (2) of Section 42 which empowers the State Government and Commissioner to extend the period specified in subsection (1) of Section 42 - The order of extension which in fact was with the consent of the appellant, has attained the finality – the Tribunal has rightly held that if any valid extension is there, assessment can be made subsequent to the date of expiry of the period provided in subsection (1) of Section 42 - the appellant gave consent for extension of time, 30.3.2006 and the Joint Commissioner of Sales Tax extended the time on 30.6.2006 and the time limit was extended upto 31.3.2007 and the assessment order has been passed on 31.3.2007 i.e. within the extended time limit – thus, the Tribunal has not committed any error and / or illegality in dismissing the appeals and not accepted the contention on behalf of the appellant that the assessment order is bad in law on the ground of limitation. Non deposit of pre-deposit – Held that:- The Tribunal ought not to have entered into the merits of the case and / or decided the appeals on merits against the order of assessment - when the appellant made submissions on merits against the order of assessment as if the appeals before the Tribunal were against the order of assessment and when the Tribunal has dealt with and considered the same and decided the appeals on merits and when appellant has lost in the appeals on merits, thereafter it not open for the appellant now to make the grievance that the Tribunal ought not to have decided the appeals on merits – thus, it is not open for the appellant now to raise a grievance that the Tribunal ought not to have entered into the merits of the case and dismissed the appeals on merits, when the submissions were made before the Tribunal as if appeals are on merits against the order of assessment also and more particularly, when the appellants have lost on merits – Decided against appellant assessee.
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