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TMI Blog2010 (12) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... brushed aside the submissions made by the assessee without even a reference thereto. The impugned order of the Tribunal therefore stands vitiated and cannot be sustained. The question is answered in the affirmative - Tax Appeal No. 2258 of 2009 - - - Dated:- 10-12-2010 - HARSHA DEVANI (MS.) AND ANTANI H.B. JJ. B.D. Karia for the appellant Ms. Maithili Mehta, Assistant Government Pleader, for the respondents JUDGMENT In this appeal under section 78 of the Gujarat Value Added Tax Act, 2005 (the Act), the appellant has challenged judgment and order dated August 25, 2009, made by the Gujarat Value Added Tax Tribunal ( the Tribunal ) in Second Appeal No. 1490 of 2004, proposing the following four questions: (i) Whether, in the facts and circumstances of the case, the Tribunal was right in law in rejecting the claim of the appellant under section 6A of the Central Sales Tax Act to the effect that the appellant had carried out consignment transaction with its agent at Maharashtra? (ii) Whether, in the facts and circumstances of the case, the Tribunal was right in law in confirming the order passed by the assessing officer, holding that the appellant has not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom April 1, 2003 to December 31, 2003. In reply to the said show-cause notice, the assessee furnished various details. Vide order dated April 30, 2004 made under section 41(1) of the Act, the assessing officer rejected the claims made by the appellant and raised a demand to the tune of ₹ 5,22,77,452. Being aggrieved, the assessee carried the matter in appeal before the Deputy Commissioner (Appeals) (hereinafter referred to as, the appellate authority ), who vide order dated November 26, 2004 dismissed the appeal. The assessee preferred second appeal before the Tribunal, but did not succeed. Assailing the impugned order of the Tribunal, Mr. B.D. Karia, learned advocate appearing on behalf of the appellant, submitted that the Tribunal has brushed aside almost all the evidences produced by the appellant which formed part of the paper book without giving any cogent reasons for dismissing the appeal. It was submitted that despite the fact that the entire assessment had been made on the basis of presumptions and assumptions, the Tribunal has disregarded the same and held that the assessee had not been able to show that the findings of the assessing officer and appellate author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer that the sales had been directly made to the parties and not through the consignment agent, deserves to be confirmed. This court has perused the record of the case as available with the court and has considered the submissions advanced by the learned advocates for the parties. A perusal of the assessment order clearly indicates that the assessing officer has proceeded on assumptions and presumptions and with a predetermined mind. The assessing officer while framing assessment has placed strong reliance upon material which he had gathered behind the back of the appellant. However, neither was the said material furnished to the appellant nor was he called upon to explain anything in the context of the material collected by the assessing officer, nor was he afforded any opportunity of hearing in respect of the same. On a plain reading of the assessment order, it is apparent that such material which has been gathered behind the back of the appellant forms the basis for the assessing officer coming to the conclusion that the sales were made directly to the parties and not through consignee agents. For instance, according to the assessing officer, upon verification, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport evidence was rejected. In the subsequent paragraphs, the Tribunal has recorded as follows: 9. The assessment order is more clear on many points. Some specific instances are mentioned therein for rejecting the genuineness of transactions. The appellant has not countered such specific instances and has deemed it proper to remain silent on it for the reasons best known to him. Findings about non-existence of the transport Co. are much more eloquent. The appellant has deemed it fit to remain silent on it. 10. Thus, the appellant has not been able to show that the findings of the assessing and the appellate officer have no basis at all and are contrary to the facts on record. Total silence of the appellant on specific observations is intriguing which goes against his case. 11. Thus, looking to the facts and circumstances that are on record, there is no reason to interfere with the impugned order. Thus, the Tribunal has merely recorded that certain specific instances have been mentioned in the assessment order for rejecting the genuineness of transactions and that the appellant has not countered such specific instances and has deemed it proper to remain silent on it f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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