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2017 (2) TMI 813 - HC - VAT and Sales TaxLevy of penalty u/s 44(i) of the OVAT Act - Whether the findings arrived at by the Deputy Commissioner Sales Tax in determining the daily sale of the dealer @ 10, 000/- for the period from 11.01.2007 to 31.03.2007 and 15, 000/- from 01.04.2007 to 29.02.2008 per day and determining the liability U/s.44 of the OVAT Act and imposition of penalty U/s.44(i) of the OVAT Act which resulted in reduction of the amount is justified in the eye of law? Held that - whatever ground has been taken by way of substantial question of law actually it is not substantial question of law rather it pertains to factual aspect and the second appellate authority accepting the reasons of the first appellate authority which is based upon cogent evidence has found no reason to deviate from it. We in exercise of power conferred u/s 80 of the OVAT Act may interfere with the finding of the statutory appellate authority if there is any error apparent on the face of record or miscarriage of justice but cannot assume the power of appellate court for reversing the fact finding by re-appreciating the evidence or the materials produced before the appellate forum. Review application dismissed.
Issues:
Challenge to order of the Judicial Member of the Orissa Sales Tax Tribunal regarding determination of daily sale, tax liability, and penalty under the Orissa Value Added Tax Act, 2004. Detailed Analysis: 1. Background and Initial Assessment: The dealer, engaged in the business of gold and silver ornaments, was not registered under the Orissa Value Added Tax Act. The Assessing Officer determined the daily average sale at ?30,000 from 01.01.2007, resulting in a tax liability of ?1,14,600 and a penalty of the same amount under Section 44(i) of the OVAT Act. 2. First Appeal and Deputy Commissioner's Decision: The dealer appealed to the Deputy Commissioner, Sales Tax, who reduced the daily sale to ?10,000 for a specific period and ?15,000 for another, resulting in a reduced tax liability of ?53,850 and a penalty under Section 44(i) of the OVAT Act, totaling ?1,07,700. 3. Second Appeal and Tribunal Decision: Both the dealer and the Revenue challenged the Deputy Commissioner's order. The Tribunal upheld the Deputy Commissioner's decision, leading to the dealer filing a revision application before the High Court under Section 80 of the OVAT Act. 4. Key Legal Questions: The High Court considered the legality of the Tribunal's decision and the nexus of the Deputy Commissioner's findings regarding the daily average sale. The court also assessed if the Tribunal's order was just, proper, and sustainable under the law. 5. Court's Analysis and Decision: The High Court examined the facts and submissions of both parties. It noted that the Assessing Officer had passed an assessment order under Section 44 of the OVAT Act, and the dealer was found to be conducting business without registration. The court found discrepancies in the determination of daily sales and physical stock by the Assessing Officer. 6. Judicial Review and Dismissal: The High Court reviewed the decisions of the lower appellate authorities and found that the substantial questions raised by the dealer were more related to factual aspects than legal issues. The court emphasized that it could not overturn factual findings unless there was a clear error or miscarriage of justice. It concluded that the dealer had been provided with sufficient opportunities during the assessment process. 7. Final Verdict: Ultimately, the High Court dismissed the revision application, upholding the Tribunal's decision. It found no grounds to interfere with the second appellate authority's findings, as they were based on substantial evidence and did not warrant judicial intervention under Section 80 of the OVAT Act.
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