Orissa High Court
Case Details
AFR ORISSA HIGH COURT: CUTTACK STREV No. 43 of 2018 In the matter of an application under Section 9(2) of the Central Sales Tax Act, 1956 read with Section 80 of Odisha Value Added Tax Act, 2004. --------------- M/s. Krsna Minerals ..… Petitioner State of Odisha ….. Opp. Party -Versus- For petitioner : M/s. B. Panda, Bijay Panda, B.B. Sahu and K.K. Bal Advocates. : Mr. Diganta Das, Addl. Standing Counsel (Revenue) For opp. party P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing: 29.08.2023:: Date of Judgment: 31.08.2023 DR. B.R. SARANGI, J. M/s. Krsna Minerals, a proprietorship firm, has filed this Sales Tax Revision under Section 9(2) of the Central Sales Tax Act, 1956 read with Section 80 of Odisha Value Added Tax Act, 2004 to consider the following questions of law arising out of order dated 01.02.2018 Page 1 of 22 passed in S.A. No.65(C) of 2016-17 by the Odisha Sales Tax Tribunal:- I) Whether the Ld. Tribunal was legally justified to hold that the order of First appeal passed was correct in law even if passed after lapse two years from the date of hearing? II) Whether the Ld. Tribunal had legally proceeded and correctly held without any specific reasons to disallow the transaction claimed U/s. 5(3) of the CST Act made through valid statutory form “H” and not disputed in the tax evasion report of the Vigilance Wing ? III) Whether the sale for ultimate export can be disallowed when the said transactions were fully supported with documents, evidence and form “H” will it be legally correct and statutorily valid to disallow them violating principles of law already settled? IV) Whether in the facts and circumstance of the case the order of assessment passed U/r. 12 (4)(C) of the CST(O) Rules and affirmed the same by the appellate authorities to justify the GTO and TTO determined at Rs.21,24,026/- ? V) Whether the Ld. Tribunal had legally proceeded and correctly held that the levy of tax, interest transactions made at and penalty on Rs.19,04,110/- vide invoice No.003/10 dtd. 22.02.2010, which was not disputed in tax evasion report? the VI) Whether in the facts and circumstance of the case the order or assessment passed U/r 12 (4) (C) of the CST (O) Rules and affirmed the same by the appellate authorities to justify the penalty imposed At Rs.1,69,992/- U/r. 12(4)(c) of the CST (O) Rules without recording the satisfaction of escapements involved ? Page 2 of 22 2. The facts leading to filing of this revision, succinctly put, are as follows:- 2.1 The petitioner, as a dealer registered under the OVAT, the CST and the OET Acts under the jurisdiction of the Dy. Commissioner of Sales Tax, Bhubaneswar-II Circle, Bhubaneswar, having TIN-2121118681, is indulged and engaged in the business of trading of iron ore and iron ore fines. The petitioner-dealer had filed returns under the OVAT Act for the period from 01.03.2010 to 31.03.2010 disclosing sales in course of export at Rs.20,14,068/- made through two invoices of Rs.19,04,110/- dated 22.02.2010 and of Rs.1,09,958/- dated 24.03.2010, but the Asst. Commissioner of Sales Tax, Vigilance Flying Squad, Cuttack submitted a tax evasion report to the Assessing Officer disputing the Invoice No. KM/Gimpex Ltd-001/11 dated 24.03.2010 amounting to Rs 1,09,958/- regarding claim of penultimate sale u/s. 5(3) CST Act on the ground that shipment was made on 13.03.2010. The Assessing Officer made the assessment u/r. 12(4)(c) of the CST (O) Rules for the period from 01.03.2010 to 31.03.2010, vide Page 3 of 22 order dated 11.09.2013, on the basis of tax evasion report bearing case no.14/Flying Squad Vigilance, vide letter no. 7585/VTX dated 12.06.2013, that the contract no. 2252 was dated 15.09.2009 and shipment was made on 13.03.2010, but the invoice was dated 24.03.2010 in respect of sale of 36.410 MT of iron ore fines (Fe content 62.60% ) at Rs.1,09,958/- relating to the order no. PO/TS- 23/09-10 to M/s. Gimpex Ltd, Bhubaneswar. But rejection of entire penultimate sales at Rs.20,14,068/- made due to non-submission of certificate of export in Form “H”. 3. The Assessing Officer, in completing the assessment for the period from 01.03.2010 to 31.03.2010 (one month), determined the GTO and TTO at Rs.21,24,026/- over and above the transactions made at Rs.20,14,068/- (Rs.19,04.110/- + 1,09,958/-) and levied tax @ 4 % at Rs.84,961/- . Apart from that, interest u/r. 8 of the CST (O) Rules at Rs.34,976/- was charged and penalty at Rs. 1,69,922/- u/r 12(4)(c) of the CST (O) Rules was imposed. Page 4 of 22 4. Rule 12(4)(c) of the CST (O) Rules prescribes that if the Assessing Officer is satisfied that the escapement was without reasonable cause, then he may direct for payment of penalty twice of the tax determined. In the present case, the transaction made at Rs.19,04,110/- was disallowed for non-submission of certificate of export in Form “H”, which, according to the petitioner, cannot be held that such transaction was escaped. Further, the balance transaction at Rs.1,09,958/- was also rejected on the basis of the report of the Flying Squad. Therefore, the Assessing Officer disallowed the documents due to alleged date of invoice as 24.03.2010 and the shipment was on 11.03.2010. Therefore, imposition of penalty of Rs.1,69,922/- could not have been directed to be paid by the dealer. 5. Aggrieved by the order of assessment dated 11.09.2013, the petitioner preferred
Legal Reasoning
first appeal by submitting that the Assessing Officer had simply relied on the evasion report without verifying the details furnished, such as, Form “H”, buyer's contract, purchase order, bill of lading and copy of invoices etc. Therefore, determination of Page 5 of 22 GTO and TTO at Rs.21,24,026/- etc. could not have been raised. The addition of Rs.1,09,958/- over and above the transaction made at Rs.20,14,068/-(Rs.19,04,110/- + Rs. 1,09,958/-) amounts to double addition. 6. The Addl. Commissioner of Sales Tax (Appeal), South Zone, Berhampur passed the order of First appeal on 30.08.2016 considering the facts of the case and documents/ evidence produced for claim of exemption u/s 5 (3) of the CST Act by confirming the order passed by the Assessing Officer and holding that the petitioner did not submit the copies of invoice and challans at the time of assessment to substantiate the claim of export u/s 5(3) of the CST Act. 7. Aggrieved by the order passed by the First Appellate Authority, the petitioner-dealer moved the Odisha Sales Tax Tribunal stating inter alia that the orders of forums bellow were illegal and the transactions made at Rs.20,14,068/- claimed to be exempted u/s. 5(3) of the CST Act being supported with statutory Form “H” issued as well as other reasons and further the addition of Rs.1,09,958/- Page 6 of 22 made twice. Therefore, the same was illegal in the facts of the case and the evasion report had disputed only on the invoice dated 24.03.2010 amounting to Rs.1,09,958/- and had not made any objection on the invoice dated 22.02.2010 amounting to Rs.19,04,110/-. Thereafter, determination of the GTO and TTO at Rs.1,24,026/- caused excessive and unjust without proper reasons and the order of First Appellate Authority, passed after two years from the date of hearing, cannot be held as the reasoned order passed. On such allegation of the petitioner-dealer the Sales Tax Tribunal disposed of the 2nd appeal confirming the order passed by Assessing Officer as well as Firtst Appellate Authority. 8. The present revision has been filed formulating the above questions of law to be adjudicated by this Court. But, since there are concurrent findings of fact, this Court cannot disturb such findings of the three forums on the question of facts. 9. In Hay v. Gordon, (1872) LR 4 PC 337, it was held that it is general rule of practice on appeals in the Page 7 of 22 Privy Council not to reverse the concurrent findings of two Courts on a question of fact. 10. Taking into consideration the principle enunciated under Section 100 of Civil Procedure Code, in case of second appeal, the finding of fact shall not be disturbed unless such finding stands vitiated on wrong test on the basis of assumptions and conjectures resulting in perversity. The issue of perversity will also come within the ambit of substantial question of law as held in Kulwant v.