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2015 (3) TMI 912 - HC - VAT and Sales TaxViolation of section 76(2)(a) of the VAT Act - Imposition of Penalty u/s 76(6) - Non production of books of accounts - Held that:- On perusal Section 76(6), it transpires that a reasonable opportunity has to be granted to the owner or a person duly authorized by such owner or the driver or the person incharge of the vehicle or carrier. - It is clear even by the brief facts as given by the petitioner that Brahma Prakash has been claimed by the petitioner himself, in the revision petition as "petitioner's representative" and he appeared and filed reply on behalf of the petitioner, in my view, the arguments advanced by the learned counsel for the petitioner cannot be accepted at all as they are contrary to the facts averred in the instant petition vis-a-vis the argument. Even otherwise, had Brahma Prakash Agarwal been a transporter, he could not have appeared and stated that he is unable to produce the books of accounts of the firm as the accountant was out of town. The respondent ACTO granted sufficient time of appearance and hearing on April 11, 2007 vide notice dated March 27, 2007 of more than weeks but the representative of the petitioner for the reasons best known requested to pass penalty order then and there. According to me the ACTO respondent had no option except to impose the penalty when the requirements were not complied with. What further enquiry was required to be made when petitioner did not want to avail of reasonable opportunity granted by the ACTO even for producing the books of accounts and supporting material. Further it is apparent on perusal of builty that the builty refers the name of sender "Jindal" and issued by Deepak Road Lines, Hissar, Haryana and the observations of the ACTO appears to be correct that the goods were transmitted from the factory of Jindal industries from Hissar to Kishangarhbas. Neither the petitioner submitted any clarification or certificate or affidavit from the so-called "Jindal" as to non-remittance of the goods from their factory to Kishangarhbas, on the contrary even the driver Deepak Kumar stated this fact before the ACTO that the vehicle was having "loha girders" which was loaded from the factory of Jindal Rolling Mills, Hissar at 4 p.m. and was going to Kishangarhbas from Hissar. In the light of these facts, no clarification or further claim was or even reply was filed by the petitioner-assessee before none of the authorities denying these facts. Even the petitioner had failed to produce the books of accounts and other supporting material respite ample opportunity having been granted and there was no occasion for the ACTO to have examined the books of accounts, in the case of Associated Steel Industries, Kota merely on the basis of statement of the driver, the finding could not have been against the petitioner-assessee. In my view, there can be no doubt about this fact and placing reliance solely, on the statement of driver no adverse inference could have been drawn but in the instant case, even the authorized representative of the petitioner submitted that he is unable to produce the books of accounts and other supporting material as well as the declaration form ST-18A and requested for passing an order then and there despite of time having been granted by the ACTO. Not only this, no reply nor any explanation or even clarification was submitted on behalf of the assessee-petitioner on records to refute the allegations/observations of the assessing officer. Burden lay on the petitioner which has not been discharged. The finding arrived at by the Tax Board, is a finding of fact in the light of the facts narrated hereinabove. - No illegality, irregularity or impropriety in the order passed by the Tax Board. No question of law arises in this petition - Decided against assessee.
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