- (1.)The assessee has preferred this appeal under Section 79 of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as 'the Act'), and is aggrieved by the judgment dated 4.9.2008, passed by the learned Commercial Taxes Tribunal, Bihar, Patna, in Revision Case No. MZ-377 of 2006 (M/s Chirag Agency v. The State of Bihar), whereby the learned Tribunal has dismissed the appeal and affirmed the orders of the two authorities below. The Appellant has framed the following substantial questions of law for consideration in the present appeal:-
(i) Whether in the facts and circumstances of the case simply because the selling Company does not issue "Tax Invoice" instantly and instead thereof it issue firstly D.O. (Delivery Order), could be a ground to establish concealment of purchase and sales and evade the tax with the connivance of the selling company, especially when the inspecting team found said D.O. in the records of selling company duly recorded?

(ii) Whether the learned Tribunal was right and correct in holding that the Appellant has intentionally attempted to conceal the purchase and sales of the goods with an intention to evade the tax by not appreciating that full payment of the value of goods together with amount of tax payable thereon was made to the selling company by the Appellant on 25.7.2005 through Bank Draft?

(iii) Whether the learned Tribunal was right and correct in determining concealment of purchase or sale when the tax payable on the goods was already collected by the selling company in advance on 25.7.2005 through Bank Draft?

(iv) Whether while confirming the orders of the courts below the learned Tribunal has overlooked the fact that the actual delivery of goods were made on 26.7.2005 and under such circumstances it is lawful and natural that the Appellant makes entry in the stock register at close hours of the day, i.e. 26.7.2005?

(v) Whether the learned Tribunal was justified in holding that non-mentioning of details of Road Permits against sale of goods, in the reply to show cause, proved mala fide intention of the Appellant and that Appellant issued bill only and never issued Road Permits for its transportation with an intention of concealing sales, without affording any opportunity to the Appellant to explain and production of documents, i.e. counterfoil of the Road Permit?

(vi) Whether the learned Tribunal was right and justified in confirming the imposition of penalty under Section 32(1) of the VAT Act, by the Commercial Tax Officer as well as its confirmation by the Joint Commissioner of Commercial Taxes (Appeals), in spite of the fact that there could be no concealment of any purchase or sales because tax payable was already collected with the price of goods by the selling company in advance on 25.7.2005 before issuance of delivery order?

(2.)A brief statement of facts essential for the disposal of this appeal may be indicated. The assessee (the Appellant) is a whole-sale dealer in fertilizer supplied by M/s Oswal Chemical and Fertilizer Limited. On 26.7.2005, the authorities under the Act had conducted a search and seizure in the premises of the assessee under the provisions of Chapter-Vlll of the Act. The authorities noticed that four sales of the goods made by M/s Oswal Fertilizer Chemical Ltd. to the Appellant between 14.7.2005 to 25.7.2005 had not been entered in the stock register and the connected documents. This led to initiation of proceedings under Section 32 of the Act, which is headed "Escaped turnover detected before or at the time of assessment of tax". Show-cause notice dated 28.7.2005 was issued to the assessee in terms of Section 32 of the Act. On a detailed consideration of the materials on record, the Commercial Tax Officer, being the learned assessing officer, rejected the cause shown by the assessee and treated the four sales in question to be escaped turn-over and imposed a penalty of Rs. 70,578.72P on the assessee. Aggrieved by the order the assessee preferred appeal before the learned Joint Commissioner of Commercial Taxes (Appeals), which was rejected by the order dated 18.7.2006. The assessee's appeal before the Tribunal has also been rejected by the impugned judgment. Hence this appeal at the instance of the assessee.
(3.)We have perused the materials on record and considered the submissions of learned for the parties. It appears that the show-cause notice had called upon the assessee to explain as to why the four sales by M/s Oswal Chemical and Fertilizer Ltd. to the assessee between 14.7.2005 to 25.7.2005, have not been entered in the stock register and the connected register/documents. The assessee had shown cause. The learned assessing officer has rejected this explanation and found that the same has purposely not been entered in the stock register to evade the liability under the Act. This has been concurrently found by all the three quasi-judicial authorities including the Tribunal. The learned Tribunal has found as follows:-
Heard the Id. counsel of both sides and perused the records. It is manifest that goods purchased on the basis of D.O. No. 266/92 dt. 25.7.05 was not entered in the books of accounts by the Petitioner up to 26.7.05 till the time of inspection. Neither cash memos nor bills were issued by the selling company in favour of Petitioner which clearly proves the intention of the Petitioner of concealing the purchase and sales and evade the tax with the connivance of the selling company.

It is thus obvious that the explanation offered by the assessee for non-inclusion of the four sales in question in the stock registers/documents of the assessee have been found to be unacceptable by all the three authorities. This is concluded by concurrent findings of facts of the three authorities.