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2023 (6) TMI 895 - KERALA HIGH COURTViolation of principles of natural justice - opportunity for cross-examining the driver of the lorry not provided - Validity of assessment order and penalty - attempt to fraudulently bring goods into the State - HELD THAT:- The specific contention of the petitioner that he had not been given a reasonable opportunity to prove that the transactions were fraudulent in nature and that the consignments were not intended and did not reach him requires consideration - the contention of the respondent that an opportunity to cross-examine the driver of the vehicle would not be practical in the circumstances, is accepted. The petitioner was entitled to be granted reasonable opportunity to substantiate his contention that the consignments were not intended for delivery to him. It is clear from the orders of assessment that the contention of the petitioner that interstate purchase had not been effected by him and that he has to be granted an opportunity to rebut the allegations levelled against him has been rejected largely relying on Section 9 of the KVAT Act stating that the burden of proving that any transaction of a dealer is not liable to tax under the Act shall lie on the dealer. Reasonable opportunity” as provided in the statute has to be a full and proper opportunity to the dealer not only to raise his contentions, but also to make available and rely on material which would support his contentions - In the instant case, the petitioner had relied on a letter dated 28.7.2012 by which he had informed the authorities that there was an attempt to misuse his TIN for bringing in consignments into the State. It is to be noted that it was only from 1st February, 2012 that the electronic filing of declaration in Form 8F had been made mandatory. The assessment years are 2011-12, 2012-13, 2013-14. In the facts and circumstances of the instant case, the petitioner ought to have been given a full and proper opportunity to substantiate his contention that the consignments which passed the check posts purportedly in the name of the petitioner were actually not intended for delivery to the petitioner. The assessment completed and the penalty imposed without giving such an opportunity to the petitioner is, therefore, unsustainable for want of a reasonable opportunity being granted to substantiate his case. The impugned orders are set aside. There will be a direction to the respondents to give the petitioner a reasonable opportunity to place on record any material to show that the consignments were not intended for him or that the consignments did not reach the petitioner - Petition allowed.
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