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Cites 3 docs
Sri Prabhudayal Agrawalla vs Orissa Sales Tax Tribunal And Ors. on 18 September, 1991
Babu Ram Vishnoi vs Commissioner Of Sales Tax on 7 September, 1971
Hukam Chand Mahendra Kumar vs Commissioner Of Sales Tax on 16 September, 1971
Citedby 2 docs
Smt. Rajrani Gupta vs Deputy Commissioner Of ... on 25 February, 1999
Dwarkadas Damodarlal Hedg, ... vs State Of Andhra Pradesh on 31 March, 2001

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Orissa High Court
J. Gopal Rao vs State Of Orissa on 23 September, 1991
Equivalent citations: 1993 88 STC 488 Orissa
Author: A Pasayat
Bench: A Pasayat, S Mohanty

JUDGMENT A. Pasayat, J.

1. At the instance of the assessee, the following questions were framed by this Court, and the Orissa Sales Tax Tribunal (in short "the Tribunal") was directed by order dated November 6, 1987, to refer them along with the statement of facts :

"(1) Whether, on the facts and in the circumstances of the case, the determination of the liability to pay tax with effect from April 1, 1980, is bad in law without determining the date of start of business ?

(2) Whether, the findings of the taxing authorities on the facts and in the circumstances of the case, are based on no evidence and also in violation of the principles of natural justice ?"

2. The background facts are that the petitioner carries on business in grocery articles and was not registered under the Orissa Sales Tax Act, 1947 (in short "the Act"). Basing on a statement recorded on February 11, 1982, the petitioner was assessed to sales tax for the assessment years 1979-80 and 1980-81, and demands including penalty under Section 12(5) of the Act were raised. Liability of the petitioner was determined with effect from April 1, 1979, by taking his daily sales at Rs. 75, Rs. 80 and Rs. 100 for the assessment years 1978-79, 1979-80 and 1980-81, respectively. According to the assessing officer, the total number of days when the petitioner made transactions were 350 and accordingly, the gross turnovers were determined. The assessments were assailed in appeal before the Assistant Commissioner of Sales Tax, Ganjam Range, Berhampur, who upheld the assessments. The petitioner's challenge before the Tribunal in second appeals, was that there was no material for determination of the daily sales for the various assessment years. The Tribunal did not accept the contention holding that in view of the statement of the petitioner before the inspecting officer on February 11, 1982, that his sales ranged from Rs. 100 to Rs.125 the estimation of daily sales cannot be said to be excessive or unreasonable. However, the liability was determined with effect from April 1, 1980, because, the number of days on which there could be transaction was taken to be 313. Accordingly, in the appeals for the assessment year 1979-80, and for the assessment year 1980-81, quantum of tax was reduced. The petitioner filed an application under Section 24(1) of the Act seeking reference of certain questions to this Court for adjudication. The application was rejected on the ground that the questions posed were not questions of law arising out of the order of the Tribunal. On being moved under Section 24(2) of the Act, a direction for referring the questions as above was given.

3. On consideration of the materials placed, we find that the Tribunal has recorded a categorical finding that the petitioner started his business from April, 1979. This conclusion is based on the statement of the assessee on February 11, 1982, that business was started about 2 1/2 years back. It cannot be, therefore, held that no starting point of business was indicated. However, the material question is whether liability fixed with effect from April 1, 1980, can be sustained. We find that no material was indicated by any of the authorities as to why the estimation of daily sales can be made at Rs. 80 and Rs. 100 for assessment years 1979-80 and 1980-81 respectively. Without any material in addition to the admission of the petitioner that his daily sales ranged between Rs.100 to Rs.125 in February, 1982, the determination of daily sales is not sustainable. For making a backward presumption, some material was necessary.

It cannot be stated by way of generalisation that in no case result of survey in one year cannot be made basis for assessment in another year. In every best judgment assessment, some amount of guess-work is permissible. Best judgment assessment is not necessarily an enhancement assessment. If assessee places acceptable materials for consideration and the books of accounts maintained are free from blemish, the assessing officer can accept the turnovers returned. If, however, the accounts are incomplete and unreliable enhancement of turnovers can be made. Similar view has been expressed by a Full Bench of this Court in Sri Prabhudayal Agrawalla v. Orissa Sales Tax Tribunal (O.J.C. No. 914 of 1985 decided on September 18, 1991).

4. The prime question is whether there can be backward and forward projection of materials detected which are relevant to a particular assessment for the purpose of making assessment for some other year. However, if the assessing officer wants to do so, some material has to be brought on record to justify just, projection. Mere presumption cannot be the basis for any assessment. The date when material was discovered is not relevant. What is material is the nature of evidence or material discovered during inspection. If materials discovered relate to any particular assessment year, those cannot be utilised for making assessment for other years, unless their relevance to any other period is established by the assessing officer. Similar view was expressed by the Allahabad High Court in Babu Ram Vishnoi v. Commissioner of Sales Tax [1972] 29 STC 392 and Hukam Chand Mahendru Kumar v. Commissioner of Sales Tax [1972] 29 STC 394. In the case at hand, no material of relevance has been indicated to justify the estimation of daily sales for assessment years 1979-80 and 1980-81. Therefore, the fixation of liability with effect from April 1, 1980, cannot be sustained. We accordingly answer the questions.

There shall be no order as to costs.

S.K. Mohanty, J.

5. I agree.