TMI Blog2016 (3) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the Revisional Authority has not applied their mind to determine whether the petitioners have successfully rebutted the legal presumption drawn by the taxation authorities and the assessment to tax is supported only on the basis of the legal presumption. Therefore the authorities have failed to discharge the obligation under the ratio of Sodhi Transport Company vs. State of U.P. [1986 (3) TMI 303 - SUPREME COURT OF INDIA]. Matter remanded 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the exit of the vehicle beyond Assam, as is required under Section 46(15)(a) of the AGST Act. In case of failure to surrender the T.P. within 30 days, legal presumption is drawn under Section 46(15)(a) that the goods 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 the Superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 (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 directing the Superintendent of Taxes to furnish to the petitioners with a copy of the demand notice dated 20.5.2004 (Annexure-VII) and the petitioners were also permitted to respond to the said demand notice. Moreover the authorities were directed to consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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 endorsed T.P. within 30 days of the date of issue, the assessment to tax and the demand was found to be valid and accordingly requisite order was passed on 3.9.2004 (Annexure-IX). 9. The aggrieved transporter then filed the Revision Petition under Section 36(2) of the AGST Act and this was considered by the Addl. Commissioner of Taxes through his order dated 26.2.2008 (Annexure-XI). The transporter contended that statutory presumption of the goods having been sold within the State of Assam is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities should have considered the documents produced by the petitioners to determine whether the legal presumption was justified to be drawn against the transporter. 12. On the other hand, Mr. S. Saikia, the learned Standing Counsel for the Finance (Taxation) Department submits that the rebuttable presumption can be dislodged only by producing clear and convincing evidence to show that what is legally presumed is not a real fact. The Counsel relies on Heinz India Private Limited vs. State of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when a taxable transaction is carried out but under the legal presumption a deemed transaction can also be made liable to tax under the AGST Act. But the issue here is whether the legal presumption of deemed sale drawn by the authorities under Section 46(15)(d) of the AGST Act, was rebutted adequately by the petitioners, through the materials produced by them along with their representation dated 25.8.2004 (Annexure-VIII). 16. We find after careful reading of the order(s) passed by the Assessing Officer and the Revisional Authority that there was no application of mind to determine whether the petitioners have successfully rebutted the legal presumption drawn by the taxation authorities and the assessment to tax is supported only on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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