JAIRAMDAS RAMAUTAR Vs. COMM OF COMMERCIAL TAXES

JUDGEMENT

(1.) BOTH the cases relate to the same assessee for the periods 1984 -85 and 1985 -86 respectively. Both the assessment orders assessing sale tax under the Bihar Finance Act, 1981 (hereinafter referred to as 'the Act ') are dated 20.2.1991, passed by the Deputy Commissioner of Commercial Taxes, Muzaffarpur Circle, Muzaffarpur. By the order relating to the year 1984 -85 the claim of the assessee that Rs. 1,93,60,838.00 was sale price of goods exported to Nepal was not accepted mainly on the ground that an essential condition of export was not satisfied because payments had not been received through bank. The further claim that Rs. 36,40,030.72 paise was sale price of tax free articles -sugar and mustard oil, was accepted only partly for the period the account books were produced. Similarly, by the order relating to year 1985 -86 a claim that Rs. 91,40,660/ - was sale price of goods exported to Nepal was not accepted on the ground that payments were not received through bank.

(2.) THE assessee preferred a revision against the orders of assessment vide revision case nos. CC (S) 654 -655/90 -91, The revision application were disallowed by order dated 15.7.1991. Against that order the assessee preferred a revision before the Commercial Taxes Tribunal, Bihar, Patna which was dismissed by order dated 26th August, 1992, mainly on the ground that there was no document as a proof of export issued by any Customs authority posted at Indian Customs border. The Bhansar receipts which were loose receipts without bearing any serial number claimed to have been issued by Customs Department of Nepal were not found reliable. The Tribunal however, agreed that the stand of the assessee that payment on account of export need not always be through Nepal bank but observed that if such payment had been through a Nepal bank, it could have been a good evidence of export.

(3.) THE assessee thereafter filed a petition for reference of law points under Section 48 of the Act. That was rejected by order dated 6.9.1993 holding that all points raised were issues of facts and the question of additional tax could not be considered as it was premature because for the assessment year 1985 -86 the tax was still to be ascertained. Thereafter, the assessee preferred an application for reference before this Court under Section 38(2) of the Act. By order dated 28.1.1994 this Court directed the Tribunal to refer the following questions of law alongwith relevant statement of case and relevant annexures: '' (1) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in taw in failing to decide all the issues raised before it in its revisional order and later deciding some in the review order by a cryptic and non -speaking one sentence order that the "reliefs not granted should be taken as rejected". (2) Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the Bhansar Certificates were unreliable is wholly arbitrary and perverse, based on mere suspicion, surmises and conjectures and not on any material on the record, rather on material contrary to law and for violation of the principles of natural justice? (3) Whether, the Tribunal having found that the goods had actually been transported from Muzaffarpur to Nepal in pursuance of the agreement to sell with the Nepal parties, such sales have been rightly termed as intra State sales? (4) Whether, on the facts and in the circumstances of the case, the rejection of the Gross Turnover shown and also the enhancement thereof by Rs. 15,91,019/ - by estimate at Rs. 2 crores, are wholly arbitrary and illegal, based on mere suspicion, surmises and conjectures unsupported by any materials on record. (5) Whether, on the facts and in the circumstances of the case, the disallowance of Rs. 21,33,618/ - out of the claim for sales of tax -free goods is wholly arbitrary and illegal, based on mere suspicion and surmises, when indisputably these were supported by the sale register, stock register as also all the purchase Bijaks and sale -memos, which had been duly produced not only before the Assessing Officer, but even before the Tribunal and in which no defect whatsoever was found? (6) Whether the levy of additional tax in respect of the amount of sales tax assessed is wholly arbitrary and without jurisdiction? (7) Whether surcharge could be levied only on the net tax payable as reduced by the admissible rebate? (8) Whether the levy of surcharge at the rate of ten per cent is legal and valid?