Ajay Kumar Mittal, J. - (1.) THIS appeal has been preferred by the Revenue under section 36 of the Haryana Value Added Tax Act, 2003 (in short, "the Act") against the orders dated August 31, 1994, June 30, 2003 and July 8, 2013, annexures A4, A5 and A10, respectively in STR No. 41 of 2007 -08 for the assessment year 1988 -89, claiming following substantial questions of law: "(i) Whether the different notices issued showing different basis for initiation of proceedings under section 31 are not illegal, as proceedings under section 31 can be issued only on the basis of 'definite information'? (ii) Whether best judgment assessment can be framed when the terms of the notice are complied with? (iii) Whether best judgment assessment can be framed in absence of any jurisdiction under the provision and moreover there is use of specific words 'definite information' related to 'turnover' have been given under the Haryana General Sales Tax Act, 1973, and particularly when subsequent legislation Value Added Tax Act, 2003 specifically provides for best judgment assessment? (iv) Whether best judgment assessment can be framed in reassessment proceedings when the turnover though not disclosed in returns but was part of balance sheet and books of account at the time of assessment? (v) Whether the best judgment reassessment is in accordance with the principles of natural justice when the written submissions filed and request for cross -examination of third party, being relied upon solely, is made but instead the judgment is reserved and best judgment is framed without affording any opportunity? (vi) Whether the judgment of the honourable Supreme Court in Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali, H.M. Abdulali : [1973] 32 STC 77 (SC) : [1973] 90 ITR 271 (SC) relied upon by the respondents against the petitioner -appellant rather favour the petitioner -appellant in present circumstances? (vii) Whether observations in judgment of honourable Punjab and Haryana High Court in case cited as Aggarwal Iron Store v. State of Punjab : [2010] 35 VST 200 (P & H) : [2009] 34 PHT 159 that no best judgment assessment can be framed if the terms of notice are complied with? (viii) Whether the penalty imposed under section 48 of the Act for suppression is not illegal? (ix) Whether penalty can be levied on assumed turnover in best judgment assessment or it is leviable on 'definite information' on 'turnover' allegedly not disclosed - A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The appellant is a proprietorship concern. It is engaged in the trading of iron and steels goods which were being purchased from M/s. Steel Authority of India Limited, Faridabad, after payment of tax. The goods were being levied to tax at the rate of four per cent at first stage of sale in the State of Haryana and there was no liability on subsequent sales of such goods in the State of Haryana. Regarding the inter -State sales, tax was leviable at the rate of four per cent against C form and hence tax paid on the purchase of goods could be set off against the tax payable on the inter -State Sales. Hence in both the cases there was almost no liability of any tax in the prevailing circumstances. The appellant had been filing prescribed quarterly returns and discharging tax obligations in accordance therewith. Assessment was framed by the assessing authority vide order dated February 18, 1993, annexure A1. All the purchases from Steel Authority of India were acknowledged and consequential tax -paid sales were allowed within the State of Haryana and similarly sales in the course of inter -State trade and commerce were accepted. Thereafter, the appellant was issued notices dated January 10, 1994, January 27, 1994, August 3, 1994 and August 23, 1994, annexure A2 (Colly) for initiating reassessment proceedings. According to the appellant, all the notices had different subject -matter which is not permissible in reassessment proceedings which is purely based on definite information. Even the notices merely provided details from the record of transport companies and there was not a single documentary evidence. In response to the notices, the assessee appeared and requested for cross -examination of the transporters and documents in possession of the assessing authority. No opportunity was provided to the assessee. Vide order dated August 31, 1994, annexure A4, assessment order was passed. Aggrieved by the order, the assessee filed appeal before the Joint Excise and Taxation Commissioner (Appeals), Faridabad (JETC (A)). Vide order dated June 30, 2003, annexure A5, the JETC(A), rejected the appeal of the appellant. Still not satisfied, the assessee filed appeal before the Tribunal on August 28, 2003. Vide order dated January 3, 2007, annexure A8, the Tribunal dismissed the appeal. The appellant filed review application dated July 5, 2007 which was also dismissed vide order dated July 8, 2013, annexure A10. Hence the present appeal by the assessee.
(2.) THE learned counsel for the appellant -dealer submitted that the Tribunal had erroneously come to the conclusion that no reply was filed and books of account were not produced. It was urged that the findings of fact recorded by the Tribunal were vitiated being based on wrong premises. The authorities on consideration of material on record, have concurrently concluded that the appellant had been indulging in the activities of evasion of tax. The findings recorded by the Tribunal in its order dated January 3, 2007, annexure A8 could be read with advantage: "Keeping in view the above -mentioned plea taken by the learned counsel for the appellant, we have gone through the assessment order and the impugned order. A perusal of the order passed by the Assessing Authority reveals that a show -cause notice was issued by the Assessing Authority on January 2, 1994, wherein he made very clear the sequence of events that the raid was conducted on the transport company and the documents relating to the appellant -firm were detected and these were cross verified from the register maintained at Sales Tax Check barrier, Faridabad. The list of documents impounded along with the bills and the details collected from the barrier in respect of the same bills were confronted to the dealer and he was asked to appear before him before any action is taken in this regard. All the details were confronted to him to the annexure attached with the show -cause notice. As per the documents impounded, the same bill numbers have been issued in the name of local dealers whereas as per barrier's record from the same bill these have been dispatched to Delhi. The details have been enumerated in the impugned order in detail by the first appellate authority. Hence the argument given by the learned counsel for the appellant that the assessing authority was not in possession of definite information is not substantiated by the facts on record. It is also a fact as borne out from the record that the reassessment proceedings were initiated on October 4, 1993 and on one occasion Shri D.B. Garg, advocate appeared without the books of accounts, he was confronted with the information in possession of the Assessing Authority but after then neither the books of account were produced nor any reply to the show -cause notice issued was given by the appellant. Hence the plea that the appellant was not given sufficient opportunity before framing the assessment is also carried no weight. Once the notice was issued, the information was confronted and the appellant did not come forward with any reply, the allegation of biased and prejudiced mind cannot be levelled against the Assessing Authority and it cannot be said that the assessment has been framed in an arbitrary manner in view of the facts as borne out from the record, the judgment cited by the learned counsel for the appellant as reported in S. Sant Singh v. Assessing Authority [1971] 28 STC 567 (P & H) is not applicable and further cited as Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali, H.M. Abdulali : [1973] 32 STC 77 (SC) : [1973] 90 ITR 271 (SC) and Pahar Chand & Sons v. State of Punjab [1972] 30 STC 211 (P & H) at page 227 are also not applicable because the appellant was given sufficient opportunities to produce the books of account to rebut the information with which he was confronted by the Assessing Authority. No application or prayer was made to cross -examine any party involved in this case, hence there was no question of calling the persons as contended by the learned counsel for the appellant. Again the judgments cited as State of Kerala v. M.M. Mathew : [1978] 42 STC 348 (SC), Maharaj Mal Hans Raj v. State of Punjab : [1981] 48 STC 369 (P & H) and Jai Ram Hans Raj v. State of Haryana : [1973] 32 STC 107 (P & H) are not applicable in the present case because the assessment is not based on mere suspicions but on the facts as collected from the extraneous sources. In fact, it is a case which is based on the definite information and facts and different points of law decided in different circumstances will not automatically be applicable in this case. The order of the Assessing Authority is detailed one and he has given the date, commodity, quantity, truck no, bill no. and amount involved in these transactions. It is very clear from these details that the appellant has been indulging in the activities of evasion of tax and he has nothing much to say or there is no material in his possession to prove that the findings of the assessing authority are factually wrong. Once the case is very clear and proper opportunity was given to the appellant -dealer and hence the orders of both the authorities below do not call for any interference. The case is disposed of accordingly." A perusal of the findings recorded by the Tribunal shows that the assessee was given sufficient opportunity by the assessing authority before framing the reassessment. The list of documents impounded along with the bills and the details collected from the barrier were confronted to the assessee. It has been further recorded by the Tribunal that neither the books of account had been produced nor any reply to the show -cause notice was given by the assessee. Learned counsel for the appellant has not been able to show that aforesaid findings are illegal or perverse in any manner. Thus, no substantial question of law arises and consequently, the appeal stands dismissed. ;