9911796707
TMI Blog2006 (1) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... een filing returns and has been assessed to general sales tax regularly. It is further pleaded that the Sales Tax Officer, Flying Squad, Jabalpur, in exercise of power under section 29(6) of the said Act, inspected on August 23, 1988 the transport garage of New Golden Transport Company at Katni. He found 148 bags of betel-nuts, 15 bags of turmeric and 13 bags of red chilli at the garage without any bill or way-bill (Billty). The Manager of the Transport Company, namely, Lalchand stated that the goods were unloaded at the transport garage from Truck No. MKK-5196. He stated that the truck came from Nagpur without concerning bills and way-bill (Billty). Out of the aforesaid, the petitioner owned 22 bags of betel-nuts. The Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was sufficient material before the Commissioner to form an opinion that the petitioner kept the goods at the transport garage with the permission of the transporter in order to evade payment of tax. According to the learned Government Advocate, this opinion was formed in a prudent manner taking the material into consideration. Accordingly, he submitted that the penalty was levied rightly and the petition is liable to be dismissed. In order to examine the applicability of sub-sections (6) and (8) of section 29 of the Madhya Pradesh General Sales Tax Act, 1958, it is necessary to reproduce certain specific provisions as under: Section 2(d) of the said Act defines "dealer" as follows: "'dealer' means any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r implied permission of such other person, the Commissioner may enter any such building, place or vehicle with such number of assistants as may be necessary, and inspect and verify if the goods have been accounted for and in the event of his reasonable belief that the dealer has not accounted for such goods with the intention of evading tax, the Commissioner may seize all such goods and take all necessary steps for their removal, proper custody and preservation. (8) If the Commissioner, after taking into consideration the explanation of the dealer and after giving him an opportunity of being heard, is satisfied that the entries relating to said goods were not made in the books of accounts, registers or other documents of the dealer and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some other person; (iv) Dealer has stored or kept goods in any building, place or vehicle in each case belonging to some other person with express or implied permission of such other person. The Commissioner is empowered to enter into any such building, place or vehicle if the aforesaid factors are found to exist. In the present case, the goods were found at the garage of Nagpur Golden Transport Company, Katni. There is no iota on record to establish that the petitioner was made aware of arrival of such goods and the goods were kept at the transport garage on the request of the petitioner. The department had no evidence before it that the delivery of the goods in question was offered to the petitioner. In order to apply section 29(6) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax [1980] 123 ITR 457 (Civil Appeal No. 2592 of 1972), has clearly held: "It is for the revenue to prove those ingredients before a penalty can be imposed. Since the burden of proof in a penalty proceeding varies from that involved in an assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted as a finding to that effect in the penalty proceeding. In the penalty proceeding the taxing authority is bound to consider the matter afresh on the material before it . . . It is further held that the mere falsity of the explanation given by the assessee, was insufficient without there being in addition cogent material or evidence from which the necessary conclusion a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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