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TMI Blog2023 (1) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India by filing writ petitions being W.P.(C) Nos. 12568 of 2006 and 12569 of 2006 as alternative remedy available under the OST Act and rules framed thereunder was exhausted. Said writ petitions were converted to STREV at the request of the counsel for the petitioner vide Order dated 11.01.2019: "10. 11.01.2019 Learned counsel for the petitioner seeks permission to convert the present writ petition to Sales Tax Revision as per the statute. Permission granted. The same be renumbered and list on 06.02.2019." 1.2. During the course of hearing when this Court asked about maintainability of STREV petitions against the Appellate Orders passed by the Commissioner of Sales Tax under Section 23(4)(c)(ii) while sitting in appeals against the Orders in suo motu revision(s) passed by the Assistant Commissioner of Sales Tax, Balasore Range, Balasore under Section 23(4)(a) of the OST Act read with Rule 80 of the OST Rules, 1947, Sri PRK Patro, learned Advocate for the petitioner simply stated that the Assistant Commissioner of Sales Tax being not the competent under the statute to exercise suo motu revision power, the Order of the Commissioner of Sales Tax is treated to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.14171-I-ST-76/63-CT, dated 03.08.1963. Perusal of Assessment Orders relating to the Assessment Years 2001-02 and 2002-03, which are subject-matter of suo motu revision(s) shows that the same were framed by the Sales Tax Officer of Balasore Circle, Balasore. Thus, in view of Notification dated 03.08.1963 issued by the Commissioner of Sales Tax in exercise of power under Section 17 of the OST Act, the Assistant Commissioner of Sales Tax of the Balasore Range is the competent authority to exercise power of suo motu revision. Therefore, the Commissioner of Sales Tax passed the impugned Orders in exercise of powers under Section 23(4)(c)(ii) in the capacity of the Appellate Authority, as the Assistant Commissioner of Sales Tax is the subordinate to the Commissioner of Sales Tax in terms of sub-rules (1) and (2) of Rule 3 of the OST Rules. 1.6. It appears having exhausted statutory remedy available, the petitioner preferred writ petitions. However, the reason best known to it, at the behest of the petitioner, said writ petitions were directed to be converted to "sales tax revisions"/STREVs by seeking permission of this Court. Though not conceding, if at all it is considered that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port submitted by the Vigilance upon inspection conducted in the business premise of the petitioner. But said reassessment proceeding was dropped on consideration of the plea taken by the dealer that the transactions reflected in the incriminating documents seized by the Vigilance were related to credit sales and since the petitioner-dealer was in habit of discharging liability on sales by adding percentage of profit to the figures of purchase, such credit sales does not attract tax liability. Such dropping of proceeding under Section 12(8) of the OST Act being not only erroneous but also prejudicial to the interest of revenue, the Assistant Commissioner of Sales Tax initiated suo motu revision proceeding invoking power under Section 23(4)(a) read with Rule 80. After hearing and examination of documents/records produced by the petitioner and also material available on record, vide Order dated 21.12.2005, the Assistant Commissioner of Sales Tax inter alia observed that the note book found during the inspection by the Vigilance contained transactions of credit sales and "it was admitted by the Authorised Agent that 60% of the total sales in a year were credit sales. Moreover, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate suo motu revision proceedings. The dealer's disclosure of turnover appears to be miserably low and it is quite difficult to run a business with such a turnover while meeting the expenditures towards fixed costs. After taking into account the submissions made by the dealer carefully, I am unable to convince myself suo motu revision proceedings initiated suffers from any infirmities. Considering the legal provisions and factual position in the case, the suo motu revision proceedings initiated and concluded by the Ld ACST, Balasore Range are confirmed in toto." 3.3. On the factual aspect the Appellate Authority confirmed the orders passed in suo motu revision proceedings. 3.4. This Court vide Order dated 18.12.2019 framed the following question of law: "Whether on the facts and circumstances of the case, the Commissioner while sitting in appeal is justified in confirming against the order of the Asst. Commissioner on suo motu revision of an order passed by the Sales Tax officer, related to a sole proprietor dealing in retail plywood sales who maintains purchase account which is not unlawful and files returns by adding profit margin on purchase price for last 18 years having n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material was seized on search being conducted by the Vigilance and such seized material was found to be relatable to the years in question. Said material was used during the course of assessment with confrontation. The fact-situation in the impugned Assessment Years being not identical to the earlier years, the contention of the petitioner that the percentage of profit as added to the purchase turnover to arrive at taxable turnover is liable to be repelled. 3.8. The Hon'ble Supreme Court of India in the case of Rallis India Ltd. Vrs. State of Tamil Nadu, (1998) 8 SCC 182 held that the finding of fact arrived at by the statutory authorities is required to be given due weight unless it is found by the High Court that such a finding is either based upon no evidence or irrelevant evidence or incorrect principles. By taking note of provisions contained in Section 24 of the OST Act this Court in the case of Gayatri Brick Industries Vrs. State of Odisha, 2015 SCC OnLine Ori 273 observed that "only on question of law, the revision can be considered by the Court". In yet another case being Laxmi Jewellers Vrs. State of Odisha, (2017) 100 VST 220 (Ori) it has been laid down that in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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