Orissa High Court
M/S. Rashmi Aquatech vs State Of Odisha Opposite Party on 2 April, 2024
Bench: B.R. Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
STREV No.36 OF 2016
M/S. Rashmi Aquatech, Petitioner
Berhampur
Mr. U.C. Behera, Advocate
Vs.
State of Odisha Opposite Party
Mr. S. Mishra, SC, CT & GST
Organization
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE G. SATAPATHY
ORDER
02.04.2024 Order No. This matter is taken up through hybrid mode.
06.
2. Heard Mr. U.C. Behura, learned counsel appearing for the petitioner and Mr. S. Mishra, learned Standing Counsel appearing for the opposite party.
3. The petitioner has filed this revision under Section 80 of the Odisha Value Added Tax Act 2004 with a prayer to adjudicate the point of law, as set out in the revision petition.
4. The factual matrix of the case, in brief, is that the petitioner is a manufacturing unit engaged in production and sale of packaged drinking water, butter milk milk, flavoured water, etc. The petitioner challenged the acceptance of report and formation of opinion of the materials available for the purpose of escaped turnover assessment under Section 43 of the OVAT Act basing on the materials available as on 07.03.2008 and any assessment is permissible under the Act without having any return either on the ddatee of visit and acceptance of report without verification of returns for the purpose of any assessment under the OVAT Act up to 31.03.2008. It challenged the maintainability of the order and formation of opinion on post finding of facts without having any materials to justify and/or to form an opinion under Section 43(1) that the Assessing Officer has possessed materials in his hand for the purpose of escaped turnover assessment that the same has been escaped from self self-assessment and Audit assessment or any any other assessment where the materials and report has not been examined and found escaped. 4.1. Being aggrieved by the order of assessment, the petitioner preferred first appeal before the Joint Commissioner of Sales Tax, Ganjam Range, Berhampur, which was confirmed by him vide order dated 31.10.2013, against which the petitioner filed second appeal bearing No.313(V) of 2013 2013-14 14 and the Odisha Sales Tax Tribunal, after due adjudication, vide order dated 29.02.2016 came to a finding that the period for filing returns of Q/E. 3/2008 was not yet tripe bears no importance since everything was verified after filing of return along with the books of accounts and thus date of visit has got no relation with the allegation of suppression found established. Apart from the same, it has been observed that the dealer was indulged in huge scale clandestine clandestine transactions by not paying ing tax on taxable items and also not showing exact quantity of water sold in containers. For this this, the foraa below have rightly found the dealer fraudulent audulent one and the tax and and penalty calculated by the foraa below is now sustained. Aggrieved by such order, the petitioner has filed this revision and raised two questions of law, as mentioned in paragraph--8 of the revision petition, which read as under:
under "(a) Whether the division bench of the tribunal is justified by rejecting the grounds and submissions of the petitioner regarding the formation of opinion for escaped turnover assessment without having any returns with disclosing the admitted facts and accounts accounts of purchase and sales for the purpose of any kinds of assessment and orders that the certain facts and figures has been escaped from such assessment for the purpose of formation of opinion in order to proceed for the purpose of escaped turnover assessment assessment that whole and any part of turnover has already been found under assessed under the OVAT Act & Rules.
(b) Whether the Ld Division Bench is justified for confirmation of order of tax and penalty without considering the facts that exempted turnover shall shall not be assessed /converted for the purpose of assessment as a taxable turnover i.e. butter milk and drinking water sold in 20 Ltrs Plastic jars without any sealed container and the inspecting officer has not submitted any report whether the jar were sealed aled or not and similarly the rate of sale submitted in the course of hearing of the 2nd appeal supported with the books of account which was not appreciated by the learned division bench for which the order is perverse and not tenable as per the settled pprinciples of law."
5. On a thorough scrutiny of the facts of the case and the question of law which have been framed, it is made clear that the Tribunal, after going through the materials available on record, record in particular, the order of assessment, order of appeal, grounds of appeal, written note of submission, cross objection filed, pointed out that the assessment has been completed under Section 43 of the OVAT Act basing on the allegation made in fraud case report submitted by the Vigilance Officials, Berhampur Wing which came into existence after thorough verification of the place of business on 07.03.2008. The assessment in question relates to the period from 01.04.2007 to 31.03.2008. During the course of verification verification, huge scale sale suppression has been detected. At the time of spot verification, the supervisor of the firm firm, who was looking after the business, was as present present.. But, he could not produce any books of accounts for verification instantly. At that time time, one vehicle bearing No.OR-07N--2908 2908 was loaded with packaged drinking water water, without being supported with any sale bill or challan challan,, for which the allegation of sale suppression of Rs.3000/ Rs.3000/- has rightly been found established by the STO. The turnover under Section 42 of o the OVAT Act for the same period has been excluded in the instant assessment order. During the course of verification also one Bhanjalipi Exercise Note Book and many written documents were recovered which depicted huge scale on clandestine transaction of the dealer petitioner. All these recovered incriminating documents were verified on 30.09.2008 vis vis-à-vis vis the books of accounts produced and allegation was lodged against the dealer. Therefore, the period for filing returns of Q/E. 3/2008 was not yet tripe bears no importance since everything was verified after filing of return along with the books of accounts and thus date of visit has got no relation with the allegation of suppression found established.
In view of the above, the question, which has been framed as ground (a) in paragraph paragraph-8 of the revision petition, petition has been answered rightly by the Tribunal.
6. So far as question of law framed as ground (b) in paragraph-
paragraph 8 of the writ petition is concerned, it is apparent that allegation lodged ed against the dealer is non non-payment payment of tax on packaged drinking water and 20 litres of water sold in Pet-Jars. The fora below have rightly taxed packaged drinking water and water sold in Pet Jars as per the requirement of Serial No.36 of the Schedule Schedule-A of the OVAT Act. The claim of the dealer of non-taxability non of packaged drinking water and water sold in Pet Jars is further tarnished as baseless baseless, since there was confused explanation given by the dealer before the Assessing Authority. Therefore, question of law framed as (b) has been answered rightly by the Tribunal.
7. In the above view of the matter, this Court does not find any illegality or irregularity in the order dated 29.02.2016 passed by the Sales Tax Tribunal, Cuttack Bench, Cuttack in S.A. No.313(V) of 2013-2014.
8. Accordingly, STREV merits no consideration and the same is dismissed.
(DR. B.R. SARANGI) JUDGE Alok (G. SATAPATHY) 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