9911796707
TMI Blog2017 (2) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,000/- for the period 11.01.2007 to 31.03.2007 and ₹ 15,000/- from 1.4.2007 to 29.02.2008 which came to ₹ 53,85,000/- and determined 1% tax on the said value and it came to ₹ 53,850/- and he added the penalty U/s.44(i) of the OVAT Act which resulted in reduction of the demand to ₹ 1,07,700/-. Being aggrieved with the said order of the first appellate forum, the dealer preferred second appeal contending therein that the average sale fixed by the first appellate forum is illegal and arbitrary and the determination of physical stock available in shop is also not correct. The dealer also challenged the imposition of penalty U/s.44(i) of the OVAT Act. 3. On the other hand, Revenue has filed cross objection by challenging the order of Deputy Commissioner, Sales Tax on the ground that the reduction of the daily sale from ₹ 30,000/- to ₹ 10,000/- and ₹ 15,000/- for different periods is illegal and arbitrary and the assessment order passed by the Assessing Officer be restored. The Revenue reiterated the same ground as was taken in cross objection filed in the second appeal. The Tribunal, after taking into consideration the rival submission of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be dismissed. 6. We have heard the learned counsels for the parties and perused the documents available on record. The fact which is not in dispute in this case is that an Assessment order was passed U/s.44 of the OVAT Act in respect of the dealer - petitioner, an unregistered dealer for the period from 01.01.2007 to 29.2.2008. The Sales Tax Officer, Investigation Unit, Berhampur submitted a new case report bearing No.28/2007-08 which alleged that the dealer was carrying on business of gold and silver Jewellery and being liable for registration was carrying business without getting registered. The dealer was issued statutory notice and in response to the same, he appeared before the Sales Tax Officer and produced the books of account of his business which indicates that he started his business on 12.1.2007 and his first sale started on 24.1.2007, but however, the dealer had not produced any books of account before the Investigation Unit Officer. The Assessing Officer has decided to the best of his judgment that the daily average sale of the dealer is ₹ 30,000/-. The date of start of business has been determined at 01.01.2007, thus the sale of dealer exceeded ₹ 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of penalty imposed by the Assessing Officer. The dealer as well as the Revenue have filed appeal against the order passed by the first appellate authority, the second appellate authority, after hearing the learned counsels for the parties has came to definite finding after going through various aspects of the matter and observed therein that the entire case depends on a new case report submitted by the Investigating unit and the shop of the dealer which was visited by them on 28.3.2007 by one person, namely, Sri Gunjaamali Pattanaik who has purchased goods worth of ₹ 4,980/- but the dealer did not grant any retail invoice to the purchaser and as such to verify the matter, investigation wing visited the shop and found that the dealer has indulged in clandestine business and he has not been registered under the provisions of the OVAT Act. The dealer claims that he started his business w.e.f.11.1.2007 but as his explanation was not satisfactory, the investigation unit determined the date of business w.e.f. 01.01.2002 and also reported the matter to the local authority. The second appellate authority has examined the quantum of the daily sale of the dealer to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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