High Court
Case Details
IN THE HIGH C CK IGH COURT OF ORISSA AT CUTTACK STREV No.36 OF 2016 ST M/S. Rashmi Aquatech, Berhampur State of Odisha Vs. Petitioner Mr. U.C. Behe Behera, Advocate Mr. S. Mishra, SC Opposite Party O SC, CT & GST Organization CORAM: DR. JU MR. JU R. JUSTICE B.R. SARANGI R. JUSTICE G. SATAPATHY ORDER 02.04.2024 Order No. 06. 2. This ma his matter is taken up through hybrid mode. Heard eard Mr. U.C. Behura, learned counsel appe l appearing for the petitioner and and Mr. S. Mishra, learned Standing Couns Counsel appearing for the opposit pposite party. 3. The pet he petitioner has filed this revision under Sect r Section 80 of the Odisha Value Value Added Tax Act 2004 with a prayer to a er to adjudicate the point of law, a law, as set out in the revision petition. 4. The fac he factual matrix of the case, in brief, is that t s that the petitioner is a manufactu ufacturing unit engaged in production and sale d sale of packaged drinking wate water, butter milk, flavoured water, etc. T etc. The petitioner
Legal Reasoning
challenged the ed the acceptance of report and formation of n of opinion of the materials avail s available for the purpose of escaped turnove urnover assessment under Section ction 43 of the OVAT Act basing on the mater materials available as on 07.03.20 .03.2008 and any assessment is permissible u sible under the Act without having having any return either on the date of visit an isit and acceptance of report with t without verification of returns for the pur he purpose of any assessment und ent under the OVAT Act up to 31.03.2008. It ch 8. It challenged the maintainability ability of the order and formation of opin f opinion on post finding of fac of facts without having any materials to just to justify and/or to form an opinio opinion under Section 43(1) that the Assessin sessing Officer has possessed mate d materials in his hand for the purpose of esca f escaped turnover assessment tha ent that the same has been escaped from sel om self-assessment and Audit asse it assessment or any other assessment where here the materials and report has rt has not been examined and found escaped. 4.1. Being a eing aggrieved by the order of assessment, t ent, the petitioner preferred first d first appeal before the Joint Commissioner o ioner of Sales Tax, Ganjam Rang Range, Berhampur, which was confirmed b rmed by him vide order dated 31 ted 31.10.2013, against which the petitioner tioner filed second appeal bearing earing No.313(V) of 2013-14 and the Odish Odisha Sales Tax Tribunal, after l, after due adjudication, vide order dated 29.0 d 29.02.2016 came to a finding tha ing that the period for filing returns of Q/E. 3/2 /E. 3/2008 was not yet tripe bears bears no importance since everything was v was verified after filing of return return along with the books of accounts and ts and thus date of visit has got n got no relation with the allegation of suppr suppression found established. A ed. Apart from the same, it has been obser observed that the dealer was ind as indulged in huge scale clandestine transac transactions by not paying tax on ax on taxable items and also not showing exac g exact quantity of water sold in c ld in containers. For this, the fora below have have rightly found the dealer frau audulent one and the tax and penalty calc y calculated by the fora below is n w is now sustained. Aggrieved by such order, order, the petitioner has filed this this revision and raised two questions of law, f law, as mentioned in paragraph- -8 of the revision petition, which read as un under: “(a) Wh rejecting regardin assessm ) Whether the division bench of the tribunal is justif cting the grounds and submissions of the pet arding the formation of opinion for escaped tu ssment without having any returns with disclosi justified by petitioner d turnover losing the admitted purpose certain assessm proceed whole a assessed itted facts and accounts of purchase and sales f pose of any kinds of assessment and orders th ain facts and figures has been escaped from ssment for the purpose of formation of opinion in or ceed for the purpose of escaped turnover assessme le and any part of turnover has already been found ssed under the OVAT Act & Rules. les for the s that the from such in order to sment that und under is Whether (b) Wh confirma the fact /convert turnover Plastic j officer h sealed o course o of accou bench fo the settle justifie the Ld Division Bench firmation of order of tax and penalty without consi facts that exempted turnover shall not be as verted for the purpose of assessment as a t over i.e. butter milk and drinking water sold in 2 stic jars without any sealed container and the insp cer has not submitted any report whether the jar led or not and similarly the rate of sale submitted rse of hearing of the 2nd appeal supported with the ccount which was not appreciated by the learned d ch for which the order is perverse and not tenable settled principles of law.” stified for onsidering assessed a taxable in 20 Ltrs inspecting e jar were itted in the the books ed division ble as per 5. On a t n a thorough scrutiny of the facts of the c the case and the question of law of law which have been framed, it is made c made clear that the Tribunal, after after going through the materials available ilable on record, in particular, the the order of assessment, order of appeal appeal, grounds of appeal, written ritten note of submission, cross objection filed n filed, pointed out that the assess assessment has been completed under Sectio Section 43 of the OVAT Act b Act basing on the allegation made in fraud fraud case report submitted by t by the Vigilance Officials, Berhampur Wing Wing which came into existence tence after thorough verification of the place o lace of business on 07.03.2008. Th 08. The assessment in question relates to the to the period from 01.04.2007 to 07 to 31.03.2008. During the course of verif f verification, huge scale sale sup le suppression has been detected. At the t the time of spot verification, th ion, the supervisor of the firm, who was look looking after the business, was as present. But, he could not produce a uce any books of accounts for ve for verification instantly. At that time, one ve one vehicle bearing No.OR-07N- -2908 was loaded with packaged drin d drinking water, without being being supported with any sale bill or challan, , for which the allegation of s n of sale suppression of Rs.3000/- has rightly rightly been found established by ed by the STO. The turnover under Sectio Section 42 of the OVAT Act fo Act for the same period has been excluded i uded in the instant assessment or ent order. During the course of verificatio ification also one Bhanjalipi Exe pi Exercise Note Book and many written doc en documents were recovered whi d which depicted huge scale on clandestine t stine transaction of the dealer peti er petitioner. All these recovered incriminatin inating documents were verified erified on 30.09.2008 vis-à-vis the books ooks of accounts produced and d and allegation was lodged against the deale dealer. Therefore, the period for d for filing returns of Q/E. 3/2008 was not y not yet tripe bears no importance rtance since everything was verified after fil ter filing of return along with the ith the books of accounts and thus date of vis of visit has got no relation with th with the allegation of suppression found establi established. n view of the above, the question, which has be In view has been framed as ground (a) in (a) in paragraph-8 of the revision petitio petition, has been answered right rightly by the Tribunal. 6. So far a o far as question of law framed as ground (b) i (b) in paragraph- 8 of the writ writ petition is concerned, it is apparent th rent that allegation lodged agains against the dealer is non-payment of tax o tax on packaged drinking wate water and 20 litres of water sold in Pet- Jars. The fora below have rig ave rightly taxed packaged drinking water and r and water sold in Pet Jars as per as per the requirement of Serial No.36 of the S f the Schedule-A of the OVAT A AT Act. The claim of the dealer of non non-taxability of packaged drin d drinking water and water sold in Pet Ja Pet Jars is further tarnished as ba d as baseless, since there was confused explana xplanation given by the dealer bef er before the Assessing Authority. Therefore refore, question of law framed as ed as (b) has been answered rightly by the Trib e Tribunal. 7. n the above view of the matter, this Court does In the a rt does not find any illegality or irr or irregularity in the order dated 29.02.2016 p 2016 passed by the Sales Tax Trib x Tribunal, Cuttack Bench, Cuttack in S.A. S.A. No.313(V) of 2013-2014. 8. Accord ccordingly, STREV merits no consideration a ation and the same is dismissed. Alok (DR. B.R. SA JUDG .R. SARANGI) UDGE (G. SATAP JUDG ATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 03-Apr-2024 16:57:33