TaxTMI 
TaxTMI 
2015 (1) TMI 221
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....following proposed substantial questions of law for the consideration of this Court . "I. Whether in the facts and circumstances of the case, the Tribunal was right in holding that the goods in question which were sold and made chargeable to tax in the State of Maharashtra are chargeable to tax in Gujarat since the payment thereof was made within the State of Gujarat ? II. Whether in the facts and circumstances of the case, the Tribunal was justified in imposing local sales tax on the same transaction which was already held to be chargeable / payable within the State of Maharashtra as local sales by the Maharashtra Sales Tax authorities thereby imposing double taxation on the same transaction ? III. Whether in the facts and circumstances of the case, the Tribunal was right in holding that the goods in question were chargeable to tax in Gujarat without there admittedly being any corroborative evidence to indicate that the goods have been delivered within the State of Gujarat ? &nbs....
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.... aforesaid notices, the appellant was asked to explain as to why the sales made out of purchases made in auction of Mumbai and Nagpur should not be treated as inter State sales occasioning movement from Gujarat on the presumption that these goods which were purchased at Mumbai and Nagpur had been brought to Gujarat and again sent back to the Maharashtra parties. That the appellant filed written reply to the said show cause notice and notice for provisional assessment under Section 41B of the Act dated 27.12.2003. Thereafter, the Assistant Commissioner of Sales Tax issued the additional show cause notice and the appellant was directed to show cause as to why sales made out of purchases made in the auction of Mumbai and sales claimed in the State of Maharashtra should not be treated as local sales of Gujarat. That the appellant filed written reply on 28.3.2007 to the additional show cause notice and submitted that sale made out of purchases made in the auction in Mumbai and Nagpur were completed in the State of Maharashtra and the Maharashtra authorities had also accepted the said facts and submissions made in response to the notice dated 21.9.2005 issued under Section 49 of Bombay S....
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....l. In the said appeal the appellant submitted the stay application. It appears that appellant also preferred appeals on merits against the order passed by the Assessing Officer. That by order dated 6.12.2007 the learned Tribunal granted stay against the recovery of remaining amount of sales tax, penalty and interest. That thereafter, the appellant submitted written statement on merits against the assessment order passed by the Assessing Officer and submissions were made by the learned advocate for the appellant on merits against the order of assessment passed by the Assessing Officer inclusive of issue of limitation in passing the order of assessment and on merits etc. 3.6. By impugned judgment and order the learned Tribunal has dealt with and considered the appeals on merits against the order of assessment passed by the Assessing Officer and thereafter on appreciation of evidence has dismissed both the appeals confirming the assessing order passed by the Assessing Officer. 3.7. Being aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Tribunal in dismissing the aforesaid two appeals and , the appellants have preferred present appeals befo....
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....eciated above evidences on record and has materially erred in holding that transaction with respect to the goods purchased by the appellant in public auction in the State of Maharashtra have taken place in the State of Gujarat and therefore, the appellants are liable to pay the sales tax. 4.4. It is further submitted by Shri Jay Kansara, learned advocate for the appellant that learned Tribunal has even not properly appreciated the fact that as such the order of assessment was beyond the period of limitation under the Act. It is submitted that the learned Tribunal has materially erred in holding that as the appellants have given the consent for extension of period of limitation, no question with respect to limitation can be raised. It is submitted that learned Tribunal has materially erred in not properly appreciating the fact that mere consent does not extend the period of limitation. It is submitted that if the assessment is barred by limitation, by consent the period of limitation cannot be extended. 4.5. It is further submitted by Shri Jay Kansara, learned advocate for the appellant that the learned Tribunal has materially erred in relying upon the aspect that payment for the ....
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....y. No other submissions have been made. 4.8. Making above submissions and relying upon the above decision, it is requested to admit / allow the present appeals. 5.0. Both these appeals are opposed by Shri Jaimin Gandhi, learned Assistant Government Pleader. It is submitted that as such there are concurrent findings of facts given by the learned Tribunal as well as Assessing Officer in holding that there are transactions / sales in the State of Gujarat, with respect to the goods which the appellant purchased in a public auction at Nagpur within the State of Maharashtra and the said findings are on appreciation of evidences which are neither perverse nor contrary to the evidence on record. It is submitted that therefore, the findings of fact which are arrived at by the authority as well as Tribunal, which are on appreciation of evidence, cannot be said to be a substantial question of law. 5.1. It is further submitted by Shri Gandhi, learned Assistant Government Pleader for the State that while considering the issue / factum whether the sales / transactions have been taken place in the State of Gujarat, bundle of facts and entire material / evidence on record are required to be cons....
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....he good which were purchased in the State of Maharashtra have in fact sold in the State of Maharashtra alone, thereafter it is for the appellant again to prove by leading the evidence that in fact the said goods are sold to the dealers in the State of Maharashtra, which the appellant has failed to prove. Therefore, it is submitted that no error and / or illegality has been committed by the learned Tribunal as well as Assessing Officer. 5.3. Now, so far as contention on behalf of the appellant that merely because amount is brought in the State of Gujarat and payment is made in the State of Gujarat, it cannot be held that the sale / transaction had taken place in the State of Gujarat is concerned, tt is submitted that in given case the aforesaid alone cannot be a ground to hold so. As stated above, as such bundle of facts and entire evidence on record are required to be considered. 5.4. It is further submitted that so far as reliance placed upon the order passed by the Sales Tax Officer in the State of Maharashtra is concerned, as such there is no finding of Sales Tax Officer of the State of Maharashtra that in fact the sales / transactions have taken place in the State of Maharash....
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....not open for the appellant to make aforesaid grievance. It is submitted that the decision of the Hon'ble Supreme Court in the case of Smithkline Beecham Co. Holding Limited(supra) which has been relied upon by the learned advocate for the appellant, would not be applicable to the facts of the present case. It is submitted that even before the Hon'ble Supreme Court, it was the revenue respondent in appeal who raised the objection and the Hon'ble Supreme Court has held accordingly. It is submitted that if the appellant would have succeeded on merits in appeal, the appellant would not have taken such a objection. It is only when the appellant has lost on merits and appeal has been dismissed on merits, now the appellant has raised the aforesaid grievance which is not permissible. It is submitted that even the aforesaid objection is neither raised in the appeal nor any proposed substantial question of law is raised on the aforesaid. 5.6. By making above submissions, it is requested to dismiss the present appeals. 6.0. Heard the learned advocates for the respective parties at length and perused the impugned judgment and order passed by the learned Tribunal as well as assessment orders.....
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....tate of Maharashtra are not existence and are not registered dealers in the State of of Maharashtra, thereafter it was for the appellant to lead the further evidence to prove and / or establish that the goods were actually sold in the State of Maharashtra, which appellants have failed to prove. In any case, when there are concurrent findings of the facts given by both Tribunal as well as Assessing Officer, which are on appreciation of evidence, which are neither shown or demonstrated to be perverse, it cannot be said that any substantial question of law arise. Under appellate jurisdiction under Section 78 of the Act, this Court is not required to reappreciate the entire evidence on record and / or interfere with the finding given by the authority below which are on appreciation of evidence unless it has been demonstrated that the findings are perverse and / or contrary to the evidence on record. While dismissing the appeals on merits and confirming the finding given Assessing Officer that goods which are purchased by the appellant, which is purchased in public auction in the State of Maharashtra were brought in the State of Gujarat and were also sold in the State of Gujarat, the le....
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....ods were brought in the State of Gujarat. The goods were brought in the State of Gujarat and they were also sold in the State of Gujarat for which the payments were received by the appellant in Gujarat. The appellant, is therefore, liable to pay tax in the State of Gujarat and accordingly, the liability was correctly worked out by the assessing officer. As far as the tax and the interest amount is concerned, there is no question of any interference by this Tribunal as it is rightly calculated and charged. However, the penalty levied by the assessing officer at the rate of 300% is on the very higher side and no proper justification is given for levy of such exorbitant penalty and hence it is reduced to 25% of the tax demand." 8.0. Now, so far as contention on behalf of the appellant by proposed substantial question of law that the Tribunal has committed an error in holding that goods in question were sold and chargeable to tax in State of Gujarat since payment thereof was made within the State of Gujarat is concerned, it is required to be noted that the learned Tribunal has not held that the goods in question were chargeable to tax in Gujarat solely on the ground that the payment t....
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.... rightly held that if any valid extension is there, assessment can be made subsequent to the date of expiry of the period provided in subsection (1) of Section 42. In the present case the appellant herein gave consent for extension of time , 30.3.2006 and the Joint Commissioner of Sales Tax extended the time on 30.6.2006 and the time limit was extended upto 31.3.2007 and the assessment order has been passed on 31.3.2007 i.e. within the extended time limit. Under the circumstances, learned Tribunal has not committed any error and / or illegality in dismissing the appeals and not accepted the contention on behalf of the appellant that the assessment order is bad in law on the ground of limitation. 11. Now, so far last contention on behalf of the appellant that as the appeals before the learned Tribunal were against the order passed by the First Appellate Authority dismissing the appeal on the ground of non deposit of predeposit and therefore, the the learned Tribunal ought not to have entered into the merits of the case and / or decided the appeals on merits against the order of assessment and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Smithkli....