ORDER : Bhargav D. Karia, J. 1. Heard learned advocate Ms. Vaibhavi K. Parikh for the appellant and learned Assistant Government Pleader Mr. Raj Tanna for the respondent State. 2. By this appeal under section 78 of the Gujarat Value Added Tax Act, 2003 (For short “the VAT Act”), the appellant has proposed the following substantial questions of law arising out of order dated 20.02.2024 passed by Gujarat Value Added Tax Tribunal, Ahmedabad (For short “the Tribunal”) in Second Appeal No.1023 of 2022: “(i) Whether, in the facts and under the circumstances of the case, the Gujarat Value Added Tax Tribunal was right in law and on facts in treating the tax-free transactions entered into by the appellant as taxable by disallowing the entire purchase/ sale transaction and levying tax at a higher rate on the same. (ii) Whether in the facts and under the circumstances of the case, the order of Gujarat Value Added Tax Tribunal is perverse in as much as : (a) it fails to take into consideration and take proper cognizance of the various documentary evidences placed before it; (b) it fails in not considering, adjudicating and dealing with the arguments and submissions made by the appellant; (c) it fails to take cognizance of the fact that even on merits of the appellant's case no amount of tax and interest is required to be paid by the appellant in the facts and the circumstances of the case; (iii) Whether, in the facts and under the circumstances of the case, the Gujarat Value Added Tax Tribunal was right in law and on facts in not deleting penalty levied by the adjudicating authority.” 3. Brief facts of the case are that Shri Babulal Manmal Dugar proprietor of Shakti Agrochem who is late father of the appellant, was engaged in the business of re-selling of tax free goods like ‘Wheat’ which is purchased from Rajasthan dealers by issuing Form-C as well as purchase of cotton seed cake which is exempted from value added tax from the Gujarat dealer and thereafter sales are made within the State of Gujarat as well as branch Transfer outside State against Form-F. 4. The Late father of the appellant was a registered dealer under the VAT Act as well as Central Sales Tax Act, 1956 (For short “the CST Act”). The Late father of the appellant was a registered dealer under the VAT Act as well as Central Sales Tax Act, 1956 (For short “the CST Act”). As per the returns and VAT audit report, the liabilities for the year under consideration i.e. for the year 2008-2009 was as under: Particulars Amount(Rs.) Total Turnover of Sales 3,38,03,905.00 Entire Sales of Wheat and Cotton cake Tax Free 3,38,03,905.00 Tax liability NIL-- Purchase turnover 3,18,97, 610.00 Tax-free 3,18,97, 610.00 Tax liability NIL-- 5. The place of business was visited by officers of the respondent department on 24.01.2012 as per the direction of the Additional Commissioner of Commercial Tax – (Enforcement)-Div-2, Ahmedabad and at that time no discrepancies or suppressed transactions were found and it was informed that the purchases of ‘Wheat’ which was tax free in the State of Gujarat was made from the registered dealers of Rajasthan against Form-C for which tax invoices were issued. 6. It is the case of the appellant that purchases and sales made were accepted as per the returns filed under the VAT Act and the output tax liability for the sales and input tax credit admissible for the purchases were accepted in the return submitted under the VAT Act. 7. Along with the returns containing the details of purchases made from the dealer and goods sold to a dealer were also filed as annexures in Form 201A and 201B. The Annual Returns under VAT Act for the year 2008-2009 were also filed by the appellant within the prescribed time. 8. It appears that during inspection, two notices dated 19.11.2012 were issued by the VAT authority and no reply was filed to such notices inspite of granting time by the authority. Thereafter show cause notice dated 18.03.2013 was issued and reply was filed on 25.03.2013. 9. During inspection, the officers of the respondent authority seized various documents. However, not further documents were produced as stated by the Assessing Officer in the assessment order. Thereafter show cause notice dated 18.03.2013 was issued and reply was filed on 25.03.2013. 9. During inspection, the officers of the respondent authority seized various documents. However, not further documents were produced as stated by the Assessing Officer in the assessment order. It is also found by the respondent Assessing Officer that the goods stated to have been purchased from the dealers at Rajasthan, as per inquiry made at Jaipur, State Commercial Tax Office of State of Rajasthan that registration number of Mahaveer Industries, Dosha, Rajasthan was cancelled with effect from 24.04.2007 and other traders, Jain Traders, Navjivan Enterprise and Laxmi Commercial Corporation have filed Nil return which is available at page 313 of the file and none of the parties had sold the goods to the late father of the appellant during the year 2008-2009. It was therefore, the case of the Assessing Officer that only billing activity was carried out without any actual purchase and sale transaction. 10. The Assessing Officer, therefore, by order dated 10.12.2013 made the assessment of purchase and sales subjected to VAT by treating the same as sale of tobacco and levied the tax at the rate of 15%. 11. Being aggrieved, the an appeal before the Commissioner(Appeals) was filed which by order dated 14.09.2022 was rejected on the ground that the required details which were called for by the Government Representative Cell were not furnished in reply dated 13.09.2022. 12. Feeling aggrieved Second Appeal No.1023 of 2022 was filed before the Tribunal which was dismissed by order dated 20.02.2024 confirming the order passed by the first appellate authority as under: “(5) We have gone through the submission of both the parties the first issue is about purchase from the Rajasthan dealers. In support of this Mr. Modi has submitted copy of the assessment orders passed by the Rajasthan authorities which shows that suppliers were in the business of selling taxable goods. But against this submission, Mr. Tiwari has presented letters signed by the Rajasthan Government authorities which categorically mentioned that suppliers have not made any sale/purchase to the appellant and few other Gujarat dealers. These letters are collected by the Gujarat officers in person. But against this submission, Mr. Tiwari has presented letters signed by the Rajasthan Government authorities which categorically mentioned that suppliers have not made any sale/purchase to the appellant and few other Gujarat dealers. These letters are collected by the Gujarat officers in person. From these letters it is clear that while the Rajasthan based dealers may have made some sale/purchase of exempted goods, but they have not sold any goods to the appellant which prima facie proves that claim of appellant is not supported by evidence. Hence we do not accept the submission of appellant on this issue. The second issue is about the commodity in which appellant was dealing. Mr. Modi has presented few evidences in support of his claim that the appellant is in the business of selling tax free commodity mainly wheat. But Mr. Tiwari has presented copy of the statement of the owner of the business Mr. Babulal Dugar who has accepted that appellant is also in the business of selling gutka. Further from the statement of Mr. Shobhraj Kevlani, the owner of the M/s Mahesh Sales Agency, it is clear that M/s Mahesh Sales Agency was selling gutka to the appellant. Hence we are not accepting submission of Mr. Modi on this issue. Further at the time of investigation the appellant was not able to produce any evidences which can prove that he was buying exempted goods from Rajasthan dealer. During the investigation he gave the statement that books of account and other evidences are lying with his accountant. From evidences presented by Mr. Tiwari it is clear that accountant also gave wrong address due to which investigation officer could not find any supporting evidences about purchase/sale of exempted goods. In the normal business practice it is expected that if a dealer is doing genuine sale/purchase transaction then he have atleast few evidences supporting his transaction in his possession and if these evidences are not available at the place of business then also atleast he will not mislead the authorities. In nut shell looking to all the evidences presented by Mr. Tiwari and as per our discussion the in above para we are of the opinion that appellant is in the business of selling taxable commodity i.e. gutka and hence the order of the First Appellate Authority is confirmed. In nut shell looking to all the evidences presented by Mr. Tiwari and as per our discussion the in above para we are of the opinion that appellant is in the business of selling taxable commodity i.e. gutka and hence the order of the First Appellate Authority is confirmed. As far as penalty is concerned looking to the evidences we are of the opinion that the appellant is involved in the tax evasion. Hence we confirm the order of the First Appellate Authority on this issue. (6) In light of aforementioned facts and reasons, following order is passed. ORDER Second Appeal No.1023 of 2022 is hereby disallowed A. The order of the First Appellate Authority is confirmed based upon the discussion above. B. No order as to cost.” 13. Learned advocate Ms. Vaibhavi Parikh appearing for the appellant has submitted the paper book containing the documents which were filed before the Tribunal during the course of hearing of the Second Appeal containing 183 pages. 14. Referring to the documents which were placed before the Tribunal, it was submitted that the Tribunal has committed a grave error in not considering the documents namely purchase register, stock register, sales register, party wise ledger for purchase of tax free goods i.e. ‘Wheat’ along with bills, party wise ledger of purchase of tax-free goods of cotton oil seeds along with bills, Form-C, Form-F, summary of the purchases and sales etc. 15. It was submitted that the Tribunal has considered the documents which are made available on behalf of the respondent i.e. list of documents seized during the search, panchnama, statement of proprietor of appellant, the assessment orders, letter dated 13.02.2012 by the Rajasthan Tax department and statement dated 25.01.2012 by proprietor of M/s. Mahesh Sales Agency and on the other hand, the Tribunal did not consider the statement of proprietor of the appellant in true perspective as well as assessment orders of the goods sold by the dealers at Rajasthan to the appellant which are placed on record. 16. 16. It was also pointed out that letter dated 03.02.2012 issued by the Rajasthan Tax Department obtained by the appellant is also not considered by the Tribunal in true perspective to come to the conclusion that the appellant has not sold tax free good ‘Wheat’ during the year under consideration but has sold the ‘Tobacco’ and therefore, the appellant was liable to pay the tax as per the provisions of the VAT Act. 17. Learned advocate Ms. Vaibhavi Parikh invited the attention of the Court to the findings arrived at by the Tribunal to point out that the submissions of the appellant are not dealt with and only the submissions made on behalf of the department’s representative are considered to dismiss the appeal without discussing what is submitted on behalf of the appellant. 18. It was also pointed out by learned advocate Ms. Parikh that the grounds raised before the Tribunal and the submissions made clearly shows that the entire order of the Tribunal suffers from perversity by not considering the factors which are required to be taken into consideration inasmuch as the Tribunal failed to take into consideration and take proper cognizance of documentary evidence placed before it and ignored the arguments and submissions made by the appellant by not referring to the merits of the case of the appellant as no amount of tax and interest is required to be paid by the appellant in the facts and circumstances of the case for doing the business of tax free Agro commodities during the year under consideration. 19. Learned advocate Ms. Parikh invited the attention of the Court to the details of the registration certificate issued under the provisions of the VAT Act to point out that the business of ‘Tobacco’ was started from the year 2009-2010 and there was no business of ‘Tobacco’ during the year under consideration. 20. Thereafter reference was made to sales register at page no.5 of the paper book to point out that entire sales made by the appellant are part of the returns filed along with the Form-F. It was pointed out that only because the appellant was having two PAN cards, it cannot be said that the appellant had misused the same when the registration is granted to the branch of the appellant at Rajasthan by the Rajasthan Commercial Tax department. It was also pointed out that F-Forms were issued by Rajasthan authority for branch transfer which are supported by the invoices duly reflected in the books of accounts of the appellant. 21. Learned advocate Ms. Parikh also pointed out that all the copies of ledger accounts from the books of account supported by invoices issued by the seller of the goods to the appellant as well as C-Forms issued by the authority are placed on record which have been ignored by the Tribunal to hold that the transactions entered into by the appellant are not genuine and they are to be treated as transaction of sale of ‘Tobacco’ which had never taken place in the year under consideration. 22. Learned advocate Ms. Parikh also referred to the transportation receipts and the weighment slips placed on record before the Tribunal which clearly shows that there was movement of tax free goods with regard to purchase and sale which are duly reflected in books of account audited under section 63 of the VAT Act. It was therefore, submitted that merely relying upon the letter of Laxmi Commercial Corporation wherein it is only stated that said firm has not done any business in Rajasthan, it cannot be said that there was no sale made outside the State of Rajasthan by the said firm. It was submitted that reliance placed by the respondent on the statement of late father of the appellant- proprietor of Shakti Agrochem Shri Babulal Manmal Dugar who has now expired is also misinterpreted by the Tribunal to the effect that in the statement which is available at page nos. 160 to 162, it cannot be said that anywhere late Babulal Dugar had admitted that there was sale of ‘Tobacco’ during the year 2008-2009. 23. Learned advocate Ms. Parikh also referred to and relied upon the assessment order passed by Rajasthan Commercial Tax department in case of branch of the Shakti Agrochem at Jaipur and submitted that entire details of branch transfer is already assessed by Rajasthan Commercial Tax department and therefore, it cannot be said that there was no genuine branch transfer made against which F-Forms were issued. Reliance was also placed upon the assessment order in case of Laxmi Commercial Corporation issued by the Commissioner Tax Officer at Jaipur to point out that same clearly shows that the said form was a genuine entity. 24. Reliance was also placed upon the assessment order in case of Laxmi Commercial Corporation issued by the Commissioner Tax Officer at Jaipur to point out that same clearly shows that the said form was a genuine entity. 24. Reliance was placed upon the letter dated 13.02.2012 issued by the Commercial Tax Officer at Jaipur wherein it is stated that M/s. Jain Traders, M/s. Mahaveer Agro Products, M/s. Navjivan Enterprise and M/s. Laxmi Commercial Corporation were having inter-State transaction. From the said letter, it was pointed out that the letter produced by respondent dated 3.02.2012 at page 171 of the paper book only refers to the purchase and sales under the VAT Act whereas issuance of C- Forms and F-Forms are mentioned in the said letter. It was submitted that the Tribunal has considered the letter dated 3.02.2012 issued by the Commercial Tax Officer and Assistant Commercial Tax Officer at Jaipur contrary to what is stated therein. 25. Reference was also made to the statement of proprietor of Mahaveer Sales Agency which is relied upon by the Tribunal to hold that the appellant has not purchased the goods from the said firm, however, in answer to question no.11, it was pointed out that the proprietor of the said firm had referred only to years 2009-2010, 2010-2011 and 2011-2012 and not to the year under consideration i.e. 2008-2009. It was therefore, submitted that the Tribunal has ignored the detailed submissions dated 09.09.2022 and 13.09.2022 before the respondent authority and dismissed the appeal and therefore, it requires consideration for the proposed question of law raised in this appeal. 26. We have considered the submissions made by the learned advocate for the appellant and have gone through the entire paper book containing 181 pages placed on record together with the impugned order, assessment orders and appellate order passed by the first appellate authority and the Tribunal. It appears that there were two PAN cards at the relevant point of time which were used as stated by the departmental representative before the Tribunal. 27. With regard to genuineness of sellers or suppliers of ‘Wheat’ which is stated to have been purchased from Rajasthan dealers, on inquiry, it was found that the registration number of the dealers from whom the appellant has stated to have purchased the ‘Wheat’ have been cancelled in the year 2007 in case of Mahaveer Industries. 28. 27. With regard to genuineness of sellers or suppliers of ‘Wheat’ which is stated to have been purchased from Rajasthan dealers, on inquiry, it was found that the registration number of the dealers from whom the appellant has stated to have purchased the ‘Wheat’ have been cancelled in the year 2007 in case of Mahaveer Industries. 28. Communication dated 03.02.2012 also shows that there was no transaction entered into by the dealer from whom the appellant has stated to have purchased ‘Wheat’ during the year under consideration. As against that the submission made by the appellant was only to the effect before the Tribunal as well as before this Court that the bank details, ledger copies and invoices in support of the purchases made by the appellant were produced before the authority. It was also the contention of the appellant before the Tribunal that there is no evidence with the respondent officer to prove that appellant was involved in selling taxable commodity i.e Gutkha/Tobacco. 29. It was also contended that there is change of opinion on part of the respondent authority as per the provisions of section 35 of the VAT Act and reassessment could not have been done by the authority as there is no escaped turn over under-assessment or assessment at the lower rate than at which it should have been assessed. It was therefore, pointed out before the Tribunal as well as before the first Appellate authority that there was no evidence available with the authority to consider the purchases and sales made by the appellant as that of ‘Tobacco’ and not of ‘Wheat’ sales or cotton sales which are exempted from the levy of VAT. 30. On perusal of the documents which were placed on record, it appears that the appellant has referred to ledger accounts of supplier of the goods from the books of accounts which are supported by purchase invoices. However, on perusal of the ledger account, it appears that payment is made by the appellant by passing journal entries in name of the persons to whom goods have been sold. Thus, there is no banking transaction involved in transaction of purchase and sales by the appellant. However, on perusal of the ledger account, it appears that payment is made by the appellant by passing journal entries in name of the persons to whom goods have been sold. Thus, there is no banking transaction involved in transaction of purchase and sales by the appellant. It is true that such an issue has never been considered by any of the authority however on perusal of ledger account, it is clear that there is no banking transaction reflected in the ledger account which shows that appellant had not entered into a genuine purchase and sale transaction and merely by passing journal entries it appears that the appellant has obtained the purchase invoices and issued the sale invoices or transfer invoices to its branch at Rajasthan to show transactions of Agro commodity which are exempted from VAT. 31. It also appears that the appellant has shown that search was carried out for four years from 2008-2009 to 2011-2012 however no details are available with regard to the subsequent years of purchases and sales as the same are not placed on record or even pleaded before any of the authority so as to distinguish the facts of the year under consideration. 32. Be that as it may, on perusal of the impugned order of the Tribunal and the order passed by the First Appellate authority there are concurrent findings of fact and we find no perversity in either of the orders which are based upon the evidence placed on record and therefore, we are of the opinion that no question of law much-less any substantial question of law arises from the impugned orders. 33. Hence, this Appeal being devoid of any merit is accordingly dismissed.