2023 (1) TMI 798 - HC - VAT and Sales Tax

Seeking restoration of assessment order - appellate order is non speaking order or not - validity of seeking restoration when the Tribunal ought to have remanded the case to appellate authority for passing fresh order - HELD THAT - It is a case where a survey was made on 26.09.2015 which is not disputed to both the parties. At the time of survey, 16 persons were having food in the dhaba at around 12.40 p.m. in the afternoon which is also not disputed. As no book of accounts was produced before the survey team by the Assessee, the Assessing Authority calculated the sale made by the Assessee relying upon the survey report. The first appellate authority has reduced the quantum of tax, which the Tribunal had restored back and upheld the order passed by the Assessing Authority after giving the elaborate reasoning to arrive at the finding. The Tribunal is the last fact finding Court and has recorded a categorical finding that as per the admitted rent and the salary being paid to the employees and the electricity charges, the total expenses incurred by the Assessee was arrived at by Tribunal, which this Court cannot interfere and re-appreciate exercising revisional jurisdiction. The finding so recorded is finding of fact and the Assessee could not bring on record any thing so as to demonstrate that the Assessing Authority or the Tribunal exceeded its jurisdiction vested in it and passed the order without any material on record. The finding of fact recorded by the Tribunal needs no interference by this Court exercising revisional jurisdiction - Revision dismissed.

Summary

Issues:
Challenge to order of Commercial Tax Tribunal under Section 58 of the VAT Act, 2008 - Legality of restoring assessment order instead of remanding for fresh order.

Analysis:
The revisionist challenged the order of the Commercial Tax Tribunal dated 09.12.2021, questioning the legality of restoring the assessment order instead of remanding the case for a fresh order. The case involved an Assessee engaged in the business of manufacturing and selling cooked food and soft drinks. The Assessee started the business on 01.08.2015 and was surveyed on 26.09.2015, revealing certain discrepancies. The Assessing Authority made an assessment based on best judgment, creating a tax liability of Rs.4,09,053/-. A first appeal partially allowed, reducing the tax amount to Rs.3,22,995/-. Subsequently, a second appeal was filed before the Tribunal, which rejected the appeal, leading to the present revision.

The Assessee contended that the Tribunal's assessment of rent, wages, and electricity expenses lacked factual basis. The Assessee argued that the turnover threshold was not crossed during the initial period of business operation. On the other hand, the Standing Counsel asserted that the Assessing Authority's reliance on the survey report was justified due to the absence of accounting records during the survey. The Standing Counsel supported the Tribunal's findings on rent, wages, and electricity expenses, which formed the basis for determining the total turnover.

The Hon'ble Court observed that the survey conducted on 26.09.2015 revealed key details undisputed by both parties. The Assessing Authority calculated sales based on the survey report as no accounting records were provided by the Assessee during the survey. The Tribunal, being the final fact-finding authority, upheld the Assessing Authority's order after thorough reasoning. The Court emphasized that the Tribunal's findings on expenses, turnover, and the Assessee's conduct post-survey were well-founded and not subject to revisional scrutiny.

Ultimately, the Court dismissed the revision, upholding the Tribunal's decision. The Court ruled in favor of the Revenue, concluding that the Tribunal's findings were based on facts and did not warrant interference. The question of law posed against the Assessee was answered in favor of the Revenue, affirming the Tribunal's order and dismissing the revision.