We have heard Mr. Tanvish Bhatt, learned counsel appearing for the appellant – assessee and Mr. Kabir Hathi, learned Assistant Government Pleader appearing for the respondent. 2. These Tax Appeals have been filed under Section 78 of the Gujarat Value Added Tax Act, 2003 challenging the common judgment and order dated 16.12.2008 passed by the Gujarat Value Added Tax Tribunal at Ahmedabad in Second Appeal Nos.204 to 211 of 2005 whereby the Tribunal dismissed the appeals of the assessee and confirmed the order dated 17.2.2005 passed by the Assistant Commissioner of Sales Tax.
3. The brief facts are that the assessee is a proprietary firm dealing in edible oil and is a registered dealer under the provisions of Gujarat Sales Tax Act, 1969 and the Central Sales Tax Act, 1956. The assessee is also a sick unit registered with the Board for Industrial and Financial Reconstruction vide order dated 4.1.2006 in Case No.134 of 2000 and 130 of 2003.
3.1 The assessee purchased edible oil from registered dealers and was engaged in resale of the same for the relevant Assessment Years being 1996-97, 1997-98, 1998-99 and 1999- 2000. The Assessing Officer passed an ex-parte order against the assessee on 29.1.2000 against which the assessee preferred an appeal before the Assistant Commissioner of Sales Tax, who remanded the matter to the Assessing Officer. Meanwhile on 13.7.2001, there was fire at the assessee's godown at Kadi due to shot-circuit on account of rain, on account of which records including books of accounts for 6 years prior to the date of such event were totally destroyed. Before the Sales Tax Officer, the assessee produced Panchnama made in presence of Police authorities in relation to the fire that broke out to prove that the records were destroyed. Despite taking note of the said Panchnama and other documents evidencing the destruction of records by fire, the Sales Tax Officer vide his order dated 20.1.2004 allegedly applying provisions of best judgment under Section 41(3) of the Gujarat Sales Tax Act, disallowed 20% of the claim of deductions of resale of goods for want of proof and further charged interest under Section 47(4)(a) and (b) and penalty under Section 45(6) and passed four best judgment assessment orders under Gujarat Sales Tax for the Assessment Years in question. Similarly, even under Central Sales Tax Act, for the relevant assessment years, the Sales Tax Officer passed four best judgment assessment orders and disallowed all deductions claimed on sales made under C-Forms and imposed tax denying benefit of lower rate of tax to the assessee and also treated all sales made against F-Forms and in the course of export as inter-State sale liable to full rate of tax. The Sales Tax Officer also charged interest under Section 47(4)(a) and (b) and penalty under Section 45(6) of the local Act for the amounts assessed to be payable towards CST.
3.2 The assessee preferred eight appeals against the said best judgment assessment orders before the Assistant Commissioner of Sales Tax, which came to be summarily rejected by ex-parte order on the ground of non-payment and non-production of proof of registration with BIFR. Being aggrieved by the aforesaid orders, the assessee preferred appeals before the Appellate Tribunal, wherein the Tribunal vide its order dated 16.4.2004 remanded all the appeals to the Assistant Commissioner of Sales Tax to decide the matter on merits and further directed that the appeals be decided on or before 30.11.2004.
3.3 The Assistant Commissioner of Sales Tax vide common order dated 21.1.2005 rejected all the eight appeals on the ground of non-production of books of account and other evidences by the assessee for substantiating the returns filed by him and raised demands for amounts towards taxes, interest and penalty under both the State Sales Tax Act as well as Central Sales Tax Act.
3.4 Against the said order dated 21.1.2005, the assessee preferred appeals before the Appellate Tribunal which came to be dismissed by common order dated 16.12.2008 upholding the best judgment assessment order passed by the Sales Tax Officer on the ground of non- production of material to substantiate the return filed by the assessee, despite holding and accepting that the books of accounts and records of the assessee were destroyed in the fire dated 13.7.2001.
4. In these Tax Appeals, the assessee has proposed the following substantial questions of law :-
“[I] Whether on the facts and circumstances of the case, the Appellate Tribunal was right in law in holding that the disallowance made in the case of the appellant were justified and that no purpose will be served by allowing the appeals of the appellant ?
[II] Whether on the facts and circumstances of the case, the Appellate Tribunal had exercised its discretionary power judiciously ?
[III] Whether on the facts and circumstances of the case, the imposition of interest under Section 47(4)(A) and penalty under Section 45(6) of the Gujarat Sales Tax Act, read with Section 9 (3) of the Central Sales Tax Act was legal ?”
5. From the grounds taken in the memo of appeal, it appears that the total outstanding dues with regard to Sales Tax, interest and penalty under the Gujarat Sales Tax Act and Central Sales Tax Act were to the tune of Rs.6,38,00,000/- out of which net tax demand is to the tune of about Rs.2,75,00,000/-. Earlier in the year 2005, all the 8 appeals were admitted without payment and stay order was granted against recovery on 15.4.2005 wherein it was observed that the appellant Company is a sick unit registered with BIFR. The case of the assessee was that at the business place, godown at Kadi on 13.7.201, due to shot-circuit on account of rain, the record of 6 years was destroyed and, therefore, the assessee could not produce at the time of assessment. Though the assessee had produced Panchnama made by the Police along with affidavit dated 29.12.2003, but the Assessing Officer passed an assessment order under Section 41(3) applying the principles of best judgment assessment. In the process, all deductions were disallowed for want of evidence. The Tribunal in paragraph 11 of the judgment has recorded categorical finding of fact which is extracted below :-
“11. The Tribunal has carefully perused the assessment orders and orders of the Appellate Officer. The appellant has not shown as to how the figures under different heads shown in the assessment order were wrong and reasons for the same. It emerges from the assessment order that tax was not paid with returns and therefore interest had to be charged and penalty imposed. In the order of the appellate officer, the dates on which the appellant was called for hearing have been mentioned. In any case, since the appellant had no record with him except Police Panchnama of fire, it is doubtful whether the presence of the appellant would have made any difference. In fact, it is his contention that he did remain present and had explained his position as stated above to the appellate officer. However, the issues raised by the appellant has been summarized in the order. The appellate officer expected that the appellant should have made some efforts to reconstruct the record and it was not difficult to obtain relevant extracts from the record of big dealers with whom the appellant had made transaction and bank statement. It was not difficult to reconstruct some record of export transactions and interstate sales also as well as some purchases. It is stated in the appellate order that copy of the audited balance sheet could have been produced. But it appears that the appellant did not want to produce even audited balance sheet, for the reasons best known to him as copy of it could have been obtained from the CA. The Assessing Officer has accepted the figures of total turnover without any enhancement. It also appears from the papers that the appellant had his office in Ahmedabad. The turnover is so huge that it is possible that there would be couple of branch offices at other places. The appellant is a registered Company but no where he has mentioned the place/address of the registered office of the Company and the details of Bank accounts of the Company. Perhaps the Company is determined not to give details that would reveal additional details of his transactions.”
6. Learned counsel for the appellant has urged that now the appellant has all the documents and is ready and willing to produce the same before the Assessing Officer. However, no such ground has been taken by the appellant in the memo of appeals nor there is any affidavit filed in support of such contention. Therefore, it appears that such contention has been raised just to get the matters adjourned or deferred.
7. We agree with the view taken by the Tribunal that the appellant does not deserve any sympathy as he has not even disclosed the address of its registered office and details of bank account. As a matter of fact, the appellant's total case was based that everything has been destroyed in fire and has got nothing to show to the authorities. The conclusions reached by the Tribunal are factual and they are reasonable. In the facts and circumstances, no substantial question arises for consideration of this Court. These appeals are devoid of any merits and are accordingly dismissed. There shall be no order as to costs.
Sd/-
[V. M. SAHAI, J.] Sd/-
[N. V. ANJARIA, J.] Savariya