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M/s Mukesh Carriers Shri Naresh Kumar Singhania Versus The State of Assam The Superintendent of Taxes The Addl. Commissioner of Taxes Assam

[2016] 90 VST 385 (Gau) - Adequate rebut of Legal presumption - Deemed sale drawn by the authorities under Section 46(15)(d) of the AGST Act - Whether convincing evidence is brought on record or not - Held that:- neither the Revisional Authority nor the Assessing Authority had carried out any such exercise to weigh the impact of the evidence, on the legal presumption. Tax becomes payable only when a taxable transaction is carried out but under the legal presumption a deemed transaction can also .....

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anded back - WP (C) No. 3034/2008 - Dated:- 23-2-2016 - Hrishikesh Roy And L. S. Jamir, JJ. For the petitioners : Mr. G.K. Joshi, Mr. R.K. Joshi Advocates For the respondents : Mr. S. Saikia. … SC, Finance JUDGMENT ( Hrishikesh Roy, J ) Heard Mr. R.K. Joshi, the learned Counsel appearing for the petitioners. The respondents are represented by Mr. S. Saikia, the learned Standing Counsel for the Finance (Taxation) Department. 2. The petitioners assail the order dated 26.2.2008 (Annexure-XI) .....

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y check gate of Assam,. The determination of this issue also involves interpretation of the law laid down in Sodhi Transport Company vs. State of U.P. reported in (1986) 62 STC 381. 3. The petitioner is a transporter engaged in the business of carrying Maruti vehicles from the Gurgaon factory to different destinations including the State of Meghalaya. The tailor truck with the loaded Maruti vehicles travelled to Meghalaya through Assam and at the check gate at Srirampur of Assam border, the trai .....

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were sold within the State of Assam and on that basis, assessment to tax can be made by the authorities. 4. In the present case, the consignment of 10 Maruti vehicles were loaded on the transporter s trailer (registration No. HR-0805) from the Gurgaon factory under the consignment Note No.8215 dated 5.11.2003 for being delivered to the consignee i.e. M/s Rani Motors, who are the authorized dealers of Maruti vehicles at Shillong. The trailer reached the Damra Check Post at the Assam border and th .....

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s personal safety on account of the prevalent communal tension in the area. Thus the trailer proceeded towards Byrnihat gate on the Meghalaya State s border during the late night hours itself and the petitioners claim that when the trailer crossed the taxation check gate at Byrnihat, necessary entries on the movement of the trailer with the consignment of Maruti vehicles was made by the office of the Superintendent of Taxes at the Byrnihat check gate of Meghalaya. According to the petitioner, th .....

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s made on 20.5.2004 (Annexure-III) under Section 17(6) of the AGST Act. Since the value of the Maruti vehicles was shown to be ₹ 17,98,920/- taking this as the taxable turnover, tax + additional tax on the said turnover, was determined at ₹ 2,37,460/- and demand notice for realization of the assessed tax was ordered. 6. The above assessment order came to be challenged by the transporter through the WP(c) No.5880/2004 which was disposed of on 24.8.2004 (Annexure-VII) by this Court by .....

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ated 25.8.2004 (Annexure-VIII) the transporter produced the copy of the certificate issued by the Superintendent of Taxes, Byrnihat dated 24.6.2004 which certified that the trailer vehicle with the consignment of Maruti cars, had crossed the taxation check gate, Byrnihat, Meghalaya on 12.11.2003, as per the records maintained in the said taxation check gate. Additionally the petitioners also furnished the affidavit of the proprietor of M/s Rani Motors where the Maruti dealer as the consignee, ac .....

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ponse dated 25.8.2004 (Annexure-VIII) before the taxing authorities. 8. After the above representation, the Tax Superintendent (respondent No.2) re-visited the assessment order but observed that, non-endorsement of the T.P. at the exit check gate due to alleged adverse law and order situation is not acceptable as other carriers secured endorsement on the T.Ps, while travelling through the same check gate on that particular date. On this understanding since the transporter failed to surrender the .....

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eing rebutted by tendering reliable documents to project the delivery of the 10 Maruti vehicles to the dealer at Shillong and accordingly the presumption of sale within Assam is contended to be negated, through documents produced by the transporter. 10. By relying on Sodhi Transport Company (supra) the petitioners contended that tax become payable only when it is established that goods were sold within Assam and in the present case, evidence should be taken into account to rule out the rebuttabl .....

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reads Section 46(15)(d) of the AGST Act and the pari materia provision of Section 28-B of the U.P. Sales Tax Act as discussed in Sodhi Transport Company (supra) to contend that, the legal presumption is rebuttable and in the instant case, the petitioners have produced necessary material to disprove the legal presumption and have produced prima facie evidence to show that the Maruti vehicles were delivered to the destined dealer of Meghalaya and were not sold in Assam. Thus it is argued that the .....

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f Uttar Pradesh reported in (2012) 5 SCC 443 to contend that heightened standard of proof is required to rebut a presumption raised in relation to a fiscal statute and in the instant case the proof of payment of tax by the dealer in the State of Meghalaya would have been such clear and convincing evidence, to rebut the legal presumption drawn by the authorities, under Section 46(15)(d) of the AGST Act. 13. In the case before us, the petitioners have tried to dislodge the legal presumption by pro .....

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ales tax for the delivered vehicles. But the worth of these documents were never examined by the Assessing Authority or by the Joint Commissioner and the impugned order(s) were passed only because of the legal presumption permitted to be drawn, under Section 46(15)(d) of the AGST Act. 14. In our considered opinion, the worth of the documents produced by the transporter should have been weighed by the authorities to determine whether convincing evidence is brought on record to rebut the legal pre .....

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