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TMI Blog2023 (1) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... because the accounts of the preceding year were rejected was no ground for rejecting the accounts for the assessment year in question. A resort to best judgment assessment can only be made if the account books produced were incomplete or otherwise unreliable and there is material to show that the assessee has suppressed such sales. In the instant case, certain material was seized on search being conducted by the Vigilance and such seized material was found to be relatable to the years in question. Said material was used during the course of assessment with confrontation. The fact-situation in the impugned Assessment Years being not identical to the earlier years, the contention of the petitioner that the percentage of profit as added to the purchase turnover to arrive at taxable turnover is liable to be repelled. Admittedly, in the present case, no additional material was adduced by the petitioner to show that the finding of the Assistant Commissioner of Sales Tax in suo motu proceedings as affirmed by the Commissioner of Sales Tax, Odisha in Appeals was perverse. This Court finds that sales tax revision itself is not entertainable against orders passed by the Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, in view of Section 23(4)(c)(i) of the OST Act, the present revision petitions have been preferred with permission of this Court. 1.3. Apparently, the petitioner's submission is misconceived. 1.4. Section 23(4) of the OST Act reads thus: "(4)(a) Subject to such rules may be made and for reasons to be recorded in writing, the Commissioner may, upon application by a dealer or person or on his own motion revise any order made under this Act or the rules made thereunder by any person other than the Tribunal appointed under sub-section (3) of Section 3 to assist him: Provided that the Commissioner shall not entertain any such application for revision if the dealer or the person filing the same having a remedy by way of appeal under sub-section (1) or sub-section (3) did not avail of such remedy or the application is not filed within the prescribed period. Explanation.- Any provision contained elsewhere in this Act which provides for determination of any specific matter shall not debar the Commissioner from determining such matter in exercise of the powers conferred upon him under this subsection. (b) If the Commissioner proposes to reject an application for revision under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised power of suo motu revision, then also, in terms of Section 23(4)(c)(i) appeal lies to this Court, but not sales tax revision as suggested by the counsel for the petitioner for the sales tax revision is maintainable under Section 24 of the OST Act only against the Order of the Second Appeal passed under Section 23(3) by the learned Odisha Sales Tax Tribunal. 1.7. The cause title of the sales tax revision filed by the petitioner describes the following: "An Application under Section 23(4)(c) of the Odisha Sales Tax Act, 1947 and rules made thereunder". 1.8. This is indicative that the petitioner has misdirected itself. The Order under challenge is not the one passed under Section 23(3). This Court is, therefore, of the opinion that the approach of the petitioner is improper, misleading and untenable inasmuch as sales tax revision before this Court would lay from the order passed under Section 23(3) and not against order under Section 23(4)(c) of OST Act. 2. Notwithstanding the above position and no plausible explanation has been rendered by Sri PRK Patro, learned counsel for the petitioner, at his insistence this Court proceeded to hear the matter on merits. 3. The Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tock remains constant over the years". It is also noted that the petitioner could not produce "purchase bills/evidences of purchase in respect of three items as per physical stock". The said Revisional Authority rejected the plea of the petitioner that the entries in the credit ledger have no relation with the business activities of the dealer and they reflect "only domestic expenditure". The Revisional Authority having threadbare analyzing the material on record re-casted/revised the quantum of tax liability for the periods 2001-02 and 2002-03. 3.2. Appeals preferred under Section 23(4)(c)(ii) by the petitioner against such Orders in suo motu revision proceedings got dismissed by the Commissioner of Sales Tax, Odisha with the following observations: "*** I have gone through the assessment order, appeal petition, order passed by the forum below, and other materials on record. The bone of contention appears to be whether the sale suppression as detected from the seized note book should be accepted or not for initiation of suo motu revision proceedings. The Ld STO, Balasore Circle had dropped the proceedings initiated u/s 12(8) of the OST Act on the ground that since the dealer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (the sales tax officer) dropped the proceedings initiated under section 12(8) of the Orissa Sales Tax Act considering the factual aspects which for no reason doubted by Assistant Commissioner and revised by including the past sales data of earlier years in which tax already paid in the said financial year, by imaginary assumptions such as 'the dealers disclosure of turnover appears to be miserably low and it is quite difficult to run a business with such a turnover while meeting expenditure towards fixed costs'?" 3.5. It transpires from the Appellate Orders passed under Section 23(4)(c)(ii) as also the Orders under Section 23(4)(a) that the factual backdrop pertaining to impugned Assessment Years emanated from Vigilance inspection and seizure of incriminating documents/records from the business premise of the petitioner. The suppression of purchases has been established by due examination of the material on record and consideration of evidence produced by the petitioner during the course of proceedings. The Revenue Authorities were justified, therefore, in varying with the percentage of profit as stated to have been added by the petitioner for many years due to special circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Odisha Value Added Tax Act, 2004 (which corresponds to Section 24 of the OST Act) this Court can 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 factfinding by re-appreciating the evidence or the materials produced before the Appellate Forum. 3.9. Admittedly, in the present case, no additional material was adduced by the petitioner to show that the finding of the Assistant Commissioner of Sales Tax in suo motu proceedings as affirmed by the Commissioner of Sales Tax, Odisha in Appeals was perverse. This Court finds that sales tax revision itself is not entertainable against orders passed by the Commissioner of Sales Tax in exercise of power under Section 23(4)(c)(ii) of the OST Act. Additionally, this Court also observes that the question of law as posed by the petitioner for adjudication of this Court is not "question of law", rather it pertains to factual aspect and the Appellate Authority in his Order passed under Section 23(4)(c)(ii) accepted the cogent reasons assigned in the orders passed under Section 23(4)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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