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2017 (11) TMI 264 - HC - VAT and Sales TaxLevy of penalty u/s 15A(1)(q) - allegation was that two consignment of paper which entered the State of U.P. on 20 and 23 July 1992, although accompanied with the appropriate declarations as envisaged under Section 28B, the requisite forms were not surrendered at the exit check post - Held that: - the receipt of the goods at the Delhi office was not disputed. The respondents have sought to draw adverse inference from the circumstance that although the challan was dated 20 July 1992, the goods were received by the Delhi office only on 23 July 1992. Based on this singular circumstance the respondents have proceeded to levy penalty upon the assessee. Section 28B only puts in place a rebuttable presumption - in case an assessee is able to produce evidence which tends to indicate and establish that what is presumed is not correct, the purpose of the rebuttable presumption is over and the burden then shifts upon the Department. Once the burden shifts, it is in light of the evidence which may be led by the respective parties that the issue must be decided - This aspect of the matter has clearly been ignored by both the assessing authority as well as the Tribunal which appears to have proceeded on the misconceived assumption that the entire onus lay or stood placed upon the assessee. Once the receipt of the goods at the Delhi office was established by the assessee, the purpose of the rebuttal presumption raised by the provision was over. It was then for the respondents to establish that the goods had in fact not exited the State of U.P. Revision allowed - decided in favor of revisionist.
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