Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (3) TMI 1032 - ORISSA HIGH COURT

2016 (3) TMI 1032 - ORISSA HIGH COURT - [2015] 85 VST 286 (Ori) - Re-assessment of tax turn over - Escaped assessment - Section 12(8) of Odisha Sales Tax Act, 1947 - Assessing officer did re-assessment solely on the basis of Audit report without providing opportunity of personal hearing - Held that:- the Sales Tax Officer has to form his objective opinion by taking the evidence of the opposite party into consideration. But here, no enquiry, independent of the report filed against the opposite pa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s of law, the learned Tribunal has rightly observed that the conclusion arrived about escaped assessment, is based on suspicion and no opportunity has been given. Therefore, as no reasonable opportunity has been given to the opposite party to pass order under section 12(8) of the Act, the Tribunal's order is valid. - Decided against the appellant - S. T. Rev. Nos. 89, S. T. Rev. Nos. 90, S. T. Rev. Nos. 91, S. T. Rev. Nos. 92 of 2011 - Dated:- 3-8-2015 - I. Mahanty and Dr. D. P. Choudhury, JJ. F .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sposed of by this common order. FACTS : 2. The unsworn details of the case of the petitioner are as follows:- The opposite party who is a registered dealer under the Act deals in Milton, Hawkins, Aristocrate, Eagles, Curlon, Sumeet Grinder, air cooler, Electrical Appliances, Plastic furnitures etc. on retail and semi-wholesale basis was assessed for the years 1995-96, 1997-98 and 1998-99, under section 12(4) of the Act and for the year 1996-97 under section 12(8) of the Act. Subsequently, in 200 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

osite party and claimed much more value of goods in comparison to less purchase of first point tax paid goods as well as non-disclosure of taxable purchase of annual stock account of opening and closing balance of stock. Thus he found that ₹ 16,34,522.00 was escaped from assessment during those years resulting in ₹ 6,11,131.00 short levy of tax including surcharge. The Auditor also found for the years 1993-94 and 1994-95 there was similar suppression of tax of ₹ 1,48,141.00 inc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r, the opposite party preferred First Appeal before the learned Asst. Commissioner of Sales Tax, Balasore Range, Balasore in F.A. Case No. AA 85 to 88/BD 2001-02 who vide order dated 21.3.2002 (Annexure-8) observed that the assessment of the year 1995-96 to 1998-99 has already been completed under section 12(4) of the Act. According to him, there was suppression of the sale of taxable goods of ₹ 19,45,020.14 paise, ₹ 6,60,600.96 paise, ₹ 11,20,283.15 paise and ₹ 8,65,360. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by the appellant to the Income Tax Department, the inventory of the physical stock was made on 30.6.2001. 4. Against the order of the learned First Appellate Authority, Second Appeal was preferred by the opposite party before the Orissa Sales Tax Tribunal (DIVISION BENCH-II), Cuttack. The Tribunal vide order dated 28.2.2011 passed in S.A. Nos. 71 to 74 of 2002-2003 framed the point in issue as to whether the order of the learned ACST confirming the orders of assessment of escaped sales tax passe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Act for the assessment of the escaped sales tax without assigning any reason in such assessment, is unlawful. Learned Tribunal found that the conclusion reached by the authorities below are not based on any material before them. Since there is no material showing suppression of tax turn over, the conclusion arrived at by the authorities below, is bad in law and accordingly the Tribunal set aside the orders of the First Appellate Authority as well as the Assessing Authority and allowed the app .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed that the audit assessment is based on no evidence and the learned authorities below the learned Tribunal have not appreciated the true facts of the case. The Opposite Party hailed the judgment of the learned Tribunal and submitted to dismiss the revision. 6. Mr. Raman, learned Additional Standing Counsel (Commercial Taxes) strenuously argued that there was assessment of the opposite party establishment for those four years under section 12(4) of the Act. But during audit assessment, the suppr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ppreciate the facts in its proper perspective and reached a wrong conclusion ignoring the orders passed by the authorities below it. According to him, the reason given by the learned Tribunal, is arbitrary and not based on any fact. He further submitted that the Tribunal being the Second Appellate Authority, must abide by the facts found by the authority below. But instead, it went on observing opinion on facts without relying upon the record which shows that there is suppression of sale turn ov .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the learned Assessing Authority. 7. Learned counsel for the Opposite Party submitted that the opposite party being the dealer, has submitted selfassessed Form showing the bills of purchase and sale. He further submitted that on the sales tax, the order of the Tribunal is correct and legal and prayed the same should be confirmed and the revision should be dismissed. DISCUSSIONS : 8. We have carefully considered the submission of the respective counsel and perused the records to apprise oursel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y other first point items which include glass and crockery. He fairly stated not to have suppressed any sale. The Assessing Authority vide Annexure-7 indicated that there was re-assessment on 17.8.2001 and it is found that tax of ₹ 1,53,170.00 is payable by the opposite party for the assessment year 1997-98. This order does not disclose the discussion on the plea taken by the opposite party. Vide order dated 21.3.2002 (Annexure-8), the First Appellate Authority simply observed that opportu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nquiry. When the order dated 17.8.2001 (Annexure-7) passed by the Assessing Authority about re-assessment does not disclose about any material of the opposite party, how the First Appellate Authority observed that opportunity was given to the opposite party to adduce evidence. But no evidence was given. While considering the impugned order of the learned Tribunal, it appears that the learned Tribunal has gone in detail and it is clearly observed in para-6 that original record of escaped assessme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by the Tribunal, impugned herein, that the tax turn over of a dealer cannot be enhanced for levy of sales tax merely on suspicion. We also endorse this view and observe that mere suspicion, however major may be, cannot substitute legal proof. It is reiterated that there is nothing found from the orders of re-assessment or the First Appellate Authority that the stock entry or any other material was considered independently to find out the escaped tax liability of the opposite party. 9. At this s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m the expiry of the year to which that period relates call for return under sub-section(1) of Section 11 and may proceed to assess the amount of tax due from the dealer in the manner laid down in sub-section(5) of this Section and may also direct, in cases where such escapement or under assessment or composition is due to the dealer having concealed particulars of his turnover or having without sufficient cause has furnished incorrect particulars thereof, that the dealer shall pay, by way of pen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ear to which that period relates call for return under subsection( 1) of Section 11 and may proceed to assess the amount of tax due from the dealer in the manner laid down in sub-section(5) of Section 12 of the Act. It is imperative to go through the sub-section (5) of Section 12 of the Act which is reproduced below : 12 (5): If upon information which has come to his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of penalty, in addition to the amount so assessed, a sum equal to one and half times that amount: Provided that no penalty shall be levied for the quarter during which the dealer first or again becomes liable to pay tax under this Act and for the period between the date of application for registration and the date of registration. 11. The above provision makes it mandatory for the Assessing Authority to hold enquiry for such period after giving the dealer the reasonable opportunity of being hea .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y short of opportunity, the Assessing Authority has accepted the Audit Assessment Report and found that there is a prima facie case under section 12(8) of the Act against the opposite party. Moreover, neither the written statement nor any short of oral statement of the opposite party find place in the re-assessment order passed by the learned Assessing Authority. The reasons given in the escaped assessment order, does not disclose how much tax turn over has been suppressed by the petitioner. Equ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessment. It is clear that he did not exercise his own judgment in the matter and faithfully followed the instructions conveyed to him by the Assistant Commissioner (C.S.) without giving the appellants an opportunity to meet the points urged against them. The whole procedure was contrary to the principles of natural justice. The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the salestax dep .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

functions, oftentimes they are unable to keep aside administrative considerations while discharging quasi judicial functions. From the aforesaid observation of the Hon ble Apex Court, we are of the view that in the instant case learned Assessing Authority even though has accepted the request of the Audit Officer, the re-assessment by the Assessing Officer as quasi judicial authority should be independent but not solely based on the report of the Audit Officer. 14. The aforesaid two decisions of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version