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TMI Blog2024 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... goods have been sold. Thus, there is no banking transaction involved in transaction of purchase and sales by the appellant. It is true that such an issue has never been considered by any of the authority however on perusal of ledger account, it is clear that there is no banking transaction reflected in the ledger account which shows that appellant had not entered into a genuine purchase and sale transaction and merely by passing journal entries it appears that the appellant has obtained the purchase invoices and issued the sale invoices or transfer invoices to its branch at Rajasthan to show transactions of Agro commodity which are exempted from VAT. It also appears that the appellant has shown that search was carried out for four years from 2008-2009 to 2011-2012 however no details are available with regard to the subsequent years of purchases and sales as the same are not placed on record or even pleaded before any of the authority so as to distinguish the facts of the year under consideration. Thus, on perusal of the impugned order of the Tribunal and the order passed by the First Appellate authority there are concurrent findings of fact and we find no perversity in either of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter sales are made within the State of Gujarat as well as branch Transfer outside State against Form-F. 4. The Late father of the appellant was a registered dealer under the VAT Act as well as Central Sales Tax Act, 1956 (For short the CST Act ). As per the returns and VAT audit report, the liabilities for the year under consideration i.e. for the year 2008-2009 was as under: Particulars Amount (Rs.) Total Turnover of Sales 3,38,03,905.00 Entire Sales of Wheat and Cotton cake Tax Free 3,38,03,905.00 Tax liability NIL-- Purchase turnover 3,18,97, 610.00 Tax-free 3,18,97, 610.00 Tax liability NIL-- 5. The place of business was visited by officers of the respondent department on 24.01.2012 as per the direction of the Additional Commissioner of Commercial Tax (Enforcement)-Div-2, Ahmedabad and at that time no discrepancies or suppressed transactions were found and it was informed that the purchases of Wheat which was tax free in the State of Gujarat was made from the registered dealers of Rajasthan against Form-C for which tax invoices were issued. 6. It is the case of the appellant that purchases and sales made were accepted as per the returns filed under the VAT Act and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. In support of this Mr. Modi has submitted copy of the assessment orders passed by the Rajasthan authorities which shows that suppliers were in the business of selling taxable goods. But against this submission, Mr. Tiwari has presented letters signed by the Rajasthan Government authorities which categorically mentioned that suppliers have not made any sale/purchase to the appellant and few other Gujarat dealers. These letters are collected by the Gujarat officers n person. From these letters it is clear that while the Rajasthan based dealers may have made some sale/purchase of exempted goods, but they have not sold any goods to the appellant which prima facie proves that claim of appellant is not supported by evidence. Hence we do not accept the submission of appellant on this issue. The second issue is about the commodity in which appellant was dealing. Mr. Modi has presented few evidences in support of his claim that the appellant is in the business of selling tax free commodity mainly wheat. But Mr. Tiwari has presented copy of the statement of the owner of the business Mr. Babulal Dugar who has accepted that appellant is also in the business of selling gutka. Further from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hases and sales etc. 15. It was submitted that the Tribunal has considered the documents which are made available on behalf of the respondent i.e. list of documents seized during the search, panchnama, statement of proprietor of appellant, the assessment orders, letter dated 13.02.2012 by the Rajasthan Tax department and statement dated 25.01.2012 by proprietor of M/s. Mahesh Sales Agency and on the other hand, the Tribunal did not consider the statement of proprietor of the appellant in true perspective as well as assessment orders of the goods sold by the dealers at Rajasthan to the appellant which are placed on record. 16. It was also pointed out that letter dated 03.02.2012 issued by the Rajasthan Tax Department obtained by the appellant is also not considered by the Tribunal in true perspective to come to the conclusion that the appellant has not sold tax free good Wheat during the year under consideration but has sold the Tobacco and therefore, the appellant was liable to pay the tax as per the provisions of the VAT Act. 17. Learned advocate Ms. Vaibhavi Parikh invited the attention of the Court to the findings arrived at by the Tribunal to point out that the submissions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Parikh also referred to the transportation receipts and the weighment slips placed on record before the Tribunal which clearly shows that there was movement of tax free goods with regard to purchase and sale which are duly reflected in books of account audited under section 63 of the VAT Act. It was therefore, submitted that merely relying upon the letter of Laxmi Commercial Corporation wherein it is only stated that said firm has not done any business in Rajasthan, it cannot be said that there was no sale made outside the State of Rajasthan by the said firm. It was submitted that reliance placed by the respondent on the statement of late father of the appellant-proprietor of Shakti Agrochem Shri Babulal Manmal Dugar who has now expired is also misinterpreted by the Tribunal to the effect that in the statement which is available at page nos. 160 to 162, it cannot be said that anywhere late Babulal Dugar had admitted that there was sale of Tobacco during the year 2008-2009. 23. Learned advocate Ms. Parikh also referred to and relied upon the assessment order passed by Rajasthan Commercial Tax department in case of branch of the Shakti Agrochem at Jaipur and submitted that entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lers, on inquiry, it was found that the registration number of the dealers from whom the appellant has stated to have purchased the Wheat have been cancelled in the year 2007 in case of Mahaveer Industries. 28. Communication dated 03.02.2012 also shows that there was no transaction entered into by the dealer from whom the appellant has stated to have purchased Wheat during the year under consideration. As against that the submission made by the appellant was only to the effect before the Tribunal as well as before this Court that the bank details, ledger copies and invoices in support of the purchases made by the appellant were produced before the authority. It was also the contention of the appellant before the Tribunal that there is no evidence with the respondent officer to prove that appellant was involved in selling taxable commodity i.e Gutkha/Tobacco. 29. It was also contended that there is change of opinion on part of the respondent authority as per the provisions of section 35 of the VAT Act and reassessment could not have been done by the authority as there is no escaped turn over under-assessment or assessment at the lower rate than at which it should have been assessed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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