J GOPAL RAO Vs. STATE OF ORISSA

JUDGEMENT

(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 :

(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.) 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 Mahendra 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. Reference answered accordingly.