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2010 (9) TMI 999 - HC - VAT and Sales TaxWhether, on the facts and circumstances of the case, the proceedings initiated against the appellant under section 18B of the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 are void ab initio in view of the fact that the goods had become part of local stock of the consignor, who is also a registered dealer under the said Act, before they were transported outside the State? Whether, on the facts and circumstances of the case, the respondent has committed an error in ignoring the submission of the appellant that the provisions of section 18B of the Karnataka Tax on Entry of Goods Act, 1979 are not applicable to the facts of the present case? Whether, on the facts and circumstances of the case, the respondent is right in rejecting the contention of the appellant that the proceedings initiated against the appellant under section 18B of the Karnataka Tax on Entry of Goods Act, 1979 is void ab initio in view of Explanation to the said section according to which hirer of the goods vehicle is presumed to be its owner and not the registered owner of the vehicle? Whether, on the facts and circumstances of the case, the respondent is erred in not appreciating the fact that for the purpose of Explanation to section 18B of the Karnataka Tax on Entry of Goods Act, 1979, consignor of the goods cannot be considered as the 'hirer' of the goods vehicle and the said word, 'hirer' is applicable to only a transporter who obtains goods vehicle on hire in case he does not own a goods vehicle? Whether, on the facts and circumstances of the case, the respondent is justified in drawing a presumption that the goods in question have been sold inside the State for the only reason that the transit pass has not been surrendered at the exit check-post inspite of the fact that the assessing authority of the consignor has in his assessment order passed under the provision of the Karnataka Sales Tax Act, 1957 given a finding that the very same goods as that involved in the present case have been transported out of the State of Karnataka? Held that:- When once by way of rebuttable evidence, the appellant relies upon the assessment order pertaining to M/s. Vivek Petro, in the absence of the Department establishing that the consignment in question did not move outside the State, revisional authority was not justified in setting aside the orders of the appellate authority. As a matter of fact, the revisional authority did not even discuss what was the rebuttable evidence relied upon by the owner of the vehicle and whether the order of the assessing authority had reached finality or not. The learned Government Advocate is fair enough to bring to our notice that the order of assessment pertaining to M/s. Vivek Petro was the subject-matter of suo motu revision under section 21, but the revisional authority confirmed the said order of assessment of the assessing officer. When once the order of assessment of M/s. Vivek Petro has reached finality, it would not be open to the Department to say that the presumption under sub-section (3) of section 18B is still available and the same is not rebutted. In view of the above discussion and reasoning, we are of the opinion, the appeal deserves to be allowed. Appeal is allowed setting aside the order of the revisional authority dated October 23, 2008
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