Kerala High Court
State Of Kerala vs M/S.Peediakal Saw Mill And Timbers on 31 January, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 12TH DAYOF MARCH 2014/21ST PHALGUNA, 1935
OT.Rev.No. 138 of 2013 ()
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TA(VAT) NO. 78/2013 OF KERALA VALUE ADDED TAX APPELLATE TRIBUNAL,
ERNAKULAM.
.......
REVISION PETITIONER/RESPONDENT/REVENUE:
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STATE OF KERALA,
REPRESENTED BY THE DEPUTY COMMISSIONER OF LAW,
COMMERCIAL TAXES, ERNAKULAM.
BY GOVT.PLEADER MR.BOBBY JOHN.
RESPONDENT/APPELLANT/ASSESSEE:
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M/S.PEEDIAKAL SAW MILL AND TIMBERS,
VAZHAPPILLY, MUVATTUPUZHA- 686 661.
BY ADV. SRI.R.MURALIDHARAN (AROOR).
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION
ON 12-03-2014, THE COURT ON THE SAME DAYPASSED THE FOLLOWING:
rs.
OT.Rev.No. 138 of 2013
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A COPY OF THE PENALTY ORDER DATED 31/01/2012 PASSED BY
THE INTELLIGENCE OFFICER, COMMERCIAL TAXES,
INTELLIGENCE SQUAD MATTANCHERRY II, KARUKUTTY.
ANNEXURE B TRUE EXTRACT COPIES OF THE DELIVERY NOTE
DATED 11/09/2011, BEARING NO.0572780.
ANNEXURE C COPY OF THE FIRST APPELLATE ORDER DATED 07/11/2012
PASSED BY THE DEPUTY COMMISSIONER (APPEALS) I,
COMMERCIAL TAXES, ERNAKULAM.
ANNEXURE D CERTIFIED COPY OF THE TRIBUNAL ORDER DATED 28/05/2013
PASSED BY THE KERALA VALUE ADDED TAX APPELLATE
TRIBUNAL, ERNAKULAM IN TA(VAT) NO.78/2013.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
MANJULA CHELLUR, CJ
& A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
O.T.(Rev) No.138 of 2013
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Dated this the 12th day of March 2014
J U D G M E N T
SHAFFIQUE, J This revision is filed by the State challenging the order passed by the Kerala Value Added Tax Appellate Tribunal Ernakulam in T.A (VAT) No.78/13. The respondent is a dealer who was imposed with a penalty of Rs.63,630/-. He challenged the penalty proceedings by filing an appeal before the Deputy Commissioner (Appeals) which came to be dismissed and on further appeal, the Tribunal set aside the findings of the lower authorities and penalty was set aside.
2. The facts involved in the above proceedings would show that the Intelligence Officer, while checking a vehicle unloading timber in the premises of the dealer, called upon the dealer to produce the documents for verification with O.T(Rev) No.138/2013 2 respect to the goods in question. At the time of inspection, the person, who was in charge of the vehicle, was in possession of the original of the purchase bill and the duplicate of the delivery note. On further verification of the books of accounts, the assessing officer noticed certain difference and modifications in the documents produced. It was observed that there was an attempt to evade tax and hence imposed a penalty being double the amount of tax sought to be evaded.
3. The Tribunal, which is the ultimate fact finding authority, verified the documents and found that no presumption can be raised regarding manipulation of the quantity of timber transported and there was no material available for the intelligence officer to come to a finding regarding evasion of tax. The documents were not manipulated and no such inference could be drawn at all. Hence the Tribunal, on appreciation of the facts and evidence, held that the imposition of penalty was unjustifiable.
O.T(Rev) No.138/2013 3
4. The learned Government Pleader, however, contends that the Tribunal was not justified in holding that no material was brought on record to establish the case of the Intelligence Officer when the burden of proof is on the assessee. Further it is argued that the assessee had violated the mandatory requirement of maintenance of copies of invoices and delivery note as specified in Rule 58 of the KVAT Rules and therefore the order of penalty is liable to be set aside.
5. On a perusal of the findings of the Tribunal, it is evident that at the time of inspection it was found that the goods were accompanied by documents as prescribed under the KVAT Act. The documents namely the original copy of purchase bill and duplicate copy of delivery note were verified by the Intelligence Inspector. These documents were prepared using double sided carbon as per Rules. Hence the Tribunal found that manipulation of these documents was not possible. The Tribunal verified the documents and found that the Intelligence Officer had made O.T(Rev) No.138/2013 4 a wrong inference while finding that the delivery note as well as the duplicate copy of the purchase bill appears to be not the carbon copy of the documents that accompanied the transport. It is observed that duplicate copy of delivery note is to be retained by the purchasing dealer or the person to whom the goods are delivered for transporting. The triplicate copy shall be retained by the consigning dealer as per KVAT Rules. The original copy of the delivery note is to be produced before the Assessing authority along with the annual return. The Tribunal found that if the triplicate copy with carbon copy is later manipulated, it could easily be detected since the original is furnished to the assessing authority and that the manipulation is not easy when double sided carbon is used.
6. Learned Government Pleader emphasises the fact that the amount is not shown in words which is a requirement to avoid subsequent manipulation. The value is shown as Rs.28,000/- and according to the Intelligence officer it could be manipulated as Rs.2,80,000/-. This fact O.T(Rev) No.138/2013 5 also have been considered by the Tribunal and observed that such a presumption cannot be raised under the factual circumstances.
7. We do not think that the contentions urged by the Learned Government Pleader gives rise to any question of law to be decided in this revision. The Tribunal had set aside the penalty on the basis of materials made available before it. Such findings of fact cannot be termed as perverse and therefore we do not think that the question of law raised in the Memorandum of Revision arises for consideration in the above petition. Accordingly, this revision petition is dismissed.
(sd/-) (MANJULA CHELLUR, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr O.T(Rev) No.138/2013 6 O.T(Rev) No.138/2013 7 O.T(Rev) No.138/2013 8