Revn.Pet. 19/2014. Gauhati High Court

Case Number:Revn.Pet. 19/2014
Judgement Date:January 19, 2020
Court:Gauhati High Court
SUMMARY

Revision Petition u/s 81 of the Assam Value Added Tax Act 2003

 
FREE EXCERPT

THE GAUHATI HIGH COURT AT GUWAHATI

(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI

Revision Petition No.19/ 2014

  1. M/ S SUGAM PARI VAHAN LTD.

    MASJI D ROAD, SHANTI PARA, AGARTALA, WEST TRI PURA,

    REP. BY I TS MANAGER AND I TS AUTHORI SED SI GNAGATORY OF THE SAI D COMPANY AND RESI DENT OF GUWAHATI ,

    KAMRUP, ASSAM.

    …… Petitioner.

    -Versus-

  2. ASSAM BOARD OF REVENUE,

    GUWAHATI , KAMRUP, ASSAM, REP. BY I TS CHAI RMAN.

  3. THE COMMI SSI ONER OF TAXES

    KAR BHAWAN, G.B. ROAD, DI SPUR, GUWAHATI , KAMRUP, ASSAM.

  4. SUPERI NTENDENT OF TAXES

    CHURAI BARI CHECK POST, CHURAI BARI .

  5. THE STATE OF ASSAM

    REP. BY THE COMMI SSI ONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPTT. OF FI NANCE, DI SPUR, GHY- 6.

    …Respondents.

    BEFORE

    HON’BLE MR. JUSTI CE HRI SHI KESH ROY HON’BLE MR. JUSTI CE NELSON SAI LO

    Advocates for the petitioner: Ms. M. Hazarika, Sr. Advocate.

    Mr. S.K. Agarwal, Advocate.

    Advocates for the Respondents: Mr. B. Choudhury, Standing Counsel,

    Finance & Taxation Department.

    Date of hearing & judgment: 19.01.2017.

    JUDGEMENT AND ORDER ( ORAL)

    ( Hrishikesh Roy, J ).

    Heard Ms. M. Hazarika, the learned senior counsel appearing for the petitioner. Also heard Mr. B. Choudhury, the learned Standing Counsel for the Finance & Taxation Department, representing the respondent Nos.2—4.

  6. The issue in this case relates to presumptive tax liability under Section 76(6) & 76(7) of the Assam Value Added Tax Act, 2003 (hereinafter referred to as “the

    VAT Act ”), imposed on account of the failure of the transporter , to discharge the

    rebuttable presumption of the truck laden with goods entering Assam being transported out of the State, without being unloaded through appropriate endorsement of the Transit Permits (TPs) at the exit check post.

  7. This petition is filed under Section 81 of the VAT Act to challenge the assessment order dated 18.3.2010 (Annexure-I V) of the Superintendent of Taxes, Churaibari Check Post, Assam for the assessment year 2005–06, under Section 76(6), read with Section 76(7) of the VAT Act. Under the impugned order, tax was

    levied for goods carried by five trucks of the Transporting Company. The company paid the tax, interest and penalty for the goods in respect of two trucks and therefore, we are concerned here with levy on the goods carried by the other 3 trucks bearing Regn. No.AP-16/ U 6287 (Gunny Bags), TR-02/ 1743 (Sheet Rubber) and TR-02/ 1620 (Sheet Rubber) respectively.

    4.1 Previous to the impugned exercise, the first assessment was made on

    31.12.2007 (Annexure-I ), on account of non-furnishing of the endorsed T.Ps. at the exit check post of Assam Border, for goods carried by 13 trucks, as is mandated under Section 76(6) of the VAT Act. This was challenged by the transporter , where they contended that they be given the opportunity to rebut the legal presumption of tax evasion, drawn under Section 76(6) of the VAT Act . The specific case of the transporter is that they collected the necessary certificates of crossing the exit check

    gate in respect of eight vehicles and therefore, there can be no presumption of evasion of tax in respect of the commodities carried in the said eight vehicles.

    4.2 For the remaining five trucks, the petitioner contended that the truck bearing Regn. No.AP-16/ U 6287 was not being operated by the transporter and therefore they should not be made liable under the VAT Act for the gunny bags carried by that truck.

    4.3 I n so far as the two trucks bearing Regn. No. TR-02/ 1743 and TR-02/ 1620 are concerned, the transporter contended that the said two loaded trucks went missing and therefore, an FI R was lodged on 10.11.2005 for the missing goods and trucks, leading to registration of East Agartala P.S. Case No.164/ 2005, under Section 407/ 420/ 468/ 379/ 102(B) of the IPC. Accordingly, it was submitted that the

    transporter be given due opportunity the rebut the legal presumption, on evasion of

    tax.

  8. The Commissioner of Taxes, Assam under his order of 9.2.2010 (Annexure-I I I ) set aside the earlier order of assessment made on 31.12.2007 and directed the Superintendent of Taxes, Churaibari to re-do the exercise, after providing due...

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