TMI Blog2015 (1) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. - TAX APPEAL NO. 667 of 2013 With CIVIL APPLICATION NO. 474 of 2013 , TAX APPEAL NO. 668 of 2013 With CIVIL APPLICATION NO. 475 of 2013 - - - Dated:- 12-9-2013 - MR. M.R. SHAH AND MS SONIA GOKANI, JJ. MR. JAY KANSARA FOR M/S WADIA GHANDY CO, ADVOCATE FOR THE APPELLANT MR. JAIMIN GANDHI ASSIT.GOVERNMENT PLEADER FOR THE RESPONDENT ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in both these appeals and as such by the common appellant and against the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal (hereinafter referred to as the Tribunal ) both these appeals are decided and disposed of by this common order. 2.0. Both these Tax Appeals have been preferred by the common appellant herein M/s. R.G. Scrap Traders challenging the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id goods were resold to various dealers of Maharashtra by dismantling the same for transportation purpose in the State of Maharashtra. According to the appellant, these purchases and sales were completed in Maharashtra. That the appellant filed its returns under the Gujarat Sales Tax Act and Central Sales Tax Act submitting that the appellant had also made purchase within the State of Gujarat and resold the said goods in the State of Gujarat and in the course of inter State trade and commerce and also claimed the set off under Rule 44 of the GST Act. That the refund under the GST Act was adjusted under the liability of CST Act and balance amount of ₹ 18,591/was paid along with returns under the CST Act. 3.2. That there was surprise visit/ inspection by the Sales Tax Authorities at the place of business of the appellant on 6.1.2003 and certain books of accounts of the appellant were seized by Enforcement Branch, Gandhinagar. That thereafter, the Sales Tax Officer, Enforcement Branch, Division 3, Gandhinagar issued show cause notice dated 27.11.2003 and another notice dated 28.11.2003 for provisional assessment under Section 41B of the GST Act for the year 2000-01 and 2001-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal demand of ₹ 65,51,804/was raised against the appellant. 3.3. That thereafter regular assessment order came to be passed by the Commissioner, Sales Tax Office under Section 41 of the Act for the year 2001-02 on 31.3.2007 under the GST Act and CST Act. Under the GST Act, as a result of assessment order the total demand was raised to the tune of ₹ 65,51.804/and under the CST Act the total demand was raised to the tune of ₹ 6,97,310/. 3.4. Being aggrieved and dissatisfied with the aforesaid orders, the appellant preferred First Appeal before the Deputy Commissioner of Commercial Tax. In the said First Appeal, the First Appellate Authority passed an order directing the appellant / appellants to deposit 50% of the total demand by way of predeposit. However, the appellant did not comply with the order of predeposit passed by the First Appellate Authority i.e. 50% of the total demand and therefore, First Appellate Authority dismissed the said appeals for non payment of 15% of the total demand by way of pre deposit. 3.5. Feeling aggrieved and dissatisfied with the orders passed by the First Appellate Authority dismissing the said appeals, the appellant pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because some entries have been found suggesting payment made in the State of Gujarat by that itself cannot be said that the goods have been treated and sold in the State of Gujarat. It is submitted that assuming that some payments have been made in the State of Gujarat by that itself it cannot be concluded that sales have taken place in the State of Gujarat. It is submitted that as the appellant is having place of business in State of Gujarat and is also carrying on the business in the State of Gujarat payments are bound to be made in the State of Gujarat and therefore,, it cannot be said that there is sale transaction in the State of Gujarat with respect to the goods which are purchased in the public auction in the State of Maharashtra. 4.3. It is further submitted by Shri Jay Kansara, learned advocate for the appellant that cogent evidences were produced before the Assessing Officer including invoices with respect to the dealers in the State of Maharashtra to show that in fact the goods which were purchased in State of Maharashtra were sold to the dealers of the State of Maharashtra and therefore, there was no local sale in the State of Gujarat as alleged. It is submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f non deposit of pre deposit only, the learned Tribunal ought not to have entered into the merits of the case and / or ought not to have decided / dismissed the appeals on merits. In support of his above submissions, he has relied upon the decision of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Chandigarh vs. Smithkline Beecham Co. Holding Limited reported in 2003 (157) ELT 497(SC). 4.7. Shri Jay Kansara, learned advocate for the appellant has vehemently submitted that in light of the order passed by the Sales Tax Officer in the State of Maharashtra passed under Section 49 of the Bombay Sales Tax Act, by which, Sales Tax Officer of Mumbai has held that as sales/ transactions have taken place within the State of Maharashtra, the appellant is not liable to pay any further tax on the second sale in the State of Maharashtra and thereafter it is not open for the Sales Tax Authority in the State of Gujarat to hold contrary. It is submitted that in the aforesaid facts and circumstances of the case, the learned Tribunal is not justified in imposing local sales tax on the same transaction which was already held to be chargeable / payable within State of Mahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, even otherwise he could not have been sold the goods in the State of Maharashtra. It is submitted that considering the overall facts and circumstances and on appreciation of evidence, when both the learned Tribunal as well as Assessing Officer has held that goods which were purchased by the appellant in a public auction in State of Maharashtra have been sold in the State of Gujarat and therefore, the appellant is liable to pay sales tax on the said transaction, no illegality has been committed by the learned Tribunal as well as Assessing Officer. 5.2. Now, so far as contention on behalf of the appellant that as such there is no material and / or evidence on record to state that sales / transactions have taken place in fact in the State of Gujarat is concerned, it is submitted by Shri Gandhi, learned Assistant Government Pleader that initially the appellant produced the bills / invoices with the name of dealer to whom the goods have been sold in the State of Maharashtra in support of its case that they have sold the goods in the State of Maharashtra. However, on inquiry and investigation when it was found that all those dealers are non existing and non registered and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant, has attained the finality, and therefore, the Tribunal has not committed any error and / or illegality in rejecting the aforesaid ground of challenge. 5.6. Now, so far as the last contention on behalf of the appellant that as appeal before the learned Tribunal was against the order passed by the First Appellate Authority dismissing the appeal on the ground of non deposit of pre deposit and therefore, the Tribunal could not have and ought not to have gone into the merits of the case and dismissed the appeal on merits is concerned, it is submitted by Shri Gandhi, learned AGP that as such it was the appellant who made submissions on merits and therefore, when the learned Tribunal has entered into the merits of the case and considered the appeals on merits, thereafter it is not open for the appellant having lost on merits before the Tribunal, to raise aforesaid objection. It is submitted that even written submissions were submitted on behalf of the appellant on merits against the order of assessment and therefore, considering the above, when the learned Tribunal has considered appeals on merits and has dealt with the appeals on merits and has given findings on merits and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fense / case, the appellant produced on record the bills / invoices in favour of various dealers in the State of Maharashtra. However, 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. On appreciation of evidence, it has also been found that the said 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. It has also found that 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. Initially it was case on behalf of the appellant by producing invoices in the name of dealer in the State of Maharashtra that itsold the goods to the dealers in the State of Maharashtra and when thereafter it has been fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sold to J.K. Steel Pvt. Ltd. It is practically impossible to believe that the invoice no.3 is dated 30.1.2001 whereas Invoice No.1 is dated 5.4.2001. Similarly, addresses of all these parties were also incomplete and because of that the sales tax officer Enforcement Branch Mumbai vide his letter dated 12.5.2003 informed the assessing officer that preliminary inquiries in the matter reveal that all these vendors are unregistered under the Mumbai Sales Tax Act, 1959 as per the computerized master list. The addresses of buyers provided by the assessing officer were insufficient and therefore, the places of these dealers could not be visited. However, on further inquiry and personal visit by the sales tax inspectors of the places of these buyers, it was found that none of these buyers were in existence. These alleged transactions are of the year 2001-02 and in the year 2003 if this was the position, it can hardly be believed that these transactions were real and genuine and that the same were taken place in the State of Maharashtra. It is therefore, clearly revealed that these parties are fake parties or they are merely name lenders. The real transactions were taken place in the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur dated 17.1.2006 is concerned, it appears that the Deputy Commissioner has simply communicated to the appellant that since tax has already paid to the Maharashtra State Electricity Board on first sale within State of Maharashtra the subsequent sales are not liable to tax. The authority at Nagpur had no occasion to consider whether in fact the appellant has sold the goods to the dealer in the State of Maharashtra as alleged. That was not the controversy before the sales authority at Nagpur. Under the circumstances, reliance placed upon the said order is misplaced. 10. Now, so far as contention on behalf of the appellant that learned Tribunal has materially erred in dismissing the appeals and not quashing and setting aside the order of assessment on the ground of limitation is concerned, it is required to be noted that 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. Under the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant would not have made such grievance. Under the circumstances, 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. It is also required to be noted at this stage that as such there is no such grievance raised in the appeal and even no substantial question of law is proposed on the aforesaid. However, as the learned advocate for the appellant has made submissions on that we have dealt with and considered the same. 12. Now, so far as reliance placed upon the decision of the Hon ble Supreme Court in the case of Smithkline Beecham Co. Holding Limited(supra) is concerned, as such there cannot be any dispute with respect to proposition of laid down by the Hon ble Supreme Court in the said decision. It is true that normally when the appeal before the Tribunal is against the order passed by the First ..... X X X X Extracts X X X X X X X X Extracts X X X X
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