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2017 (2) TMI 131 - GAUHATI HIGH COURT

2017 (2) TMI 131 - GAUHATI HIGH COURT - TMI - Presumptive taxation u/s 76(6) & 76(7) of the Assam Value Added Tax Act, 2003 - the transporter failed to rebut the legal presumption, through appropriate evidence - Held that: - when a transporter brings goods inside a State, he would be treated to be a dealer for the purpose of levy of tax, when he fails to establish that the goods are transported out of the State, through the exit check gate. In such event, a presumption can be recorded that the g .....

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16/U 6287, which entered the Churaibari Check Gate of Assam on 5.8.2005, it will not be logical to hold that the presumption is conclusive against the petitioner. - In so far as the two missing trucks are concerned, if in fact, the driver or the in-charge of the vehicles were responsible for misappropriating the loaded sheet rubber, carried in the two missing trucks, to burden the transporter with tax liability in such situation will be an unwarranted exercise - on account of the misdeeds of .....

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pondents: Mr. B. Choudhury, Standing Counsel, Finance & Taxation Department JUDGMENT ( Hrishikesh Roy, J ). Heard Ms. M. Hazarika, the learned senior counsel appearing for the petitioner. Also heard Mr. B. Choudhury, the learned Standing Counsel for the Finance & Taxation Department, representing the respondent Nos.2-4. 2. The issue in this case relates to presumptive tax liability under Section 76(6) & 76(7) of the Assam Value Added Tax Act, 2003 (hereinafter referred to as the VAT .....

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5-06, under Section 76(6), read with Section 76(7) of the VAT Act. Under the impugned order, tax was levied for goods carried by five trucks of the Transporting Company. The company paid the tax, interest and penalty for the goods in respect of two trucks and therefore, we are concerned here with levy on the goods carried by the other 3 trucks bearing Regn. No.AP-16/U 6287 (Gunny Bags), TR-02/1743 (Sheet Rubber) and TR-02/1620 (Sheet Rubber) respectively. 4.1 Previous to the impugned exercise, t .....

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es of crossing the exit check gate in respect of eight vehicles and therefore, there can be no presumption of evasion of tax in respect of the commodities carried in the said eight vehicles. 4.2 For the remaining five trucks, the petitioner contended that the truck bearing Regn. No.AP-16/U 6287 was not being operated by the transporter and therefore they should not be made liable under the VAT Act for the gunny bags carried by that truck. 4.3 In so far as the two trucks bearing Regn. No. TR-02/1 .....

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-III) set aside the earlier order of assessment made on 31.12.2007 and directed the Superintendent of Taxes, Churaibari to re-do the exercise, after providing due opportunity to the transporter to rebut the legal presumption. 6. Following the order passed by the Revisional Authority, the Assessing Officer noted that the transporter could produce the certificates from the exit check post, for eight truck loads but found that they failed to produce such supporting document for the commodities in t .....

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ied by the three other trucks, which were made subject to tax, under Section 76(6) of the VAT Act. In their Appeal, filed under Section 80 of the VAT Act, the transporter contended that the presumption that the goods have been sold within the State of Assam, when T.P. is not submitted with due endorsement of the exit check gate is a rebuttable presumption. The transporter specifically distanced themselves from the truck No.AP-16/U 6287, laden with gunny bags and said that they have no connection .....

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learned Chief Judicial Magistrate, Agartala, for the missing goods and trucks against the charge sheeted accused. 9. The Assam Board of Revenue considered the above projection and found that the truck bearing Regn. No.AP-16/U 6287, from which the transporter had distanced themselves, can t absolve them from the liability of tax under the presumptive clause, as the T.P. for the goods in this truck was issued at the entry check gate, in the name of the transporter. Moreover on account of the fail .....

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under the presumptive clause of the VAT Act, Ms. M. Hazarika, the learned senior counsel submits that the Assessing Officer discharges a quasi judicial function, under Section 76(7) of the VAT Act and such exercise has to be performed with responsibility with due regard to the rebuttable nature of the legal presumption, to be drawn against the transporter or the truck driver. 10.2 She submits that the petitioner is not a dealer under Section 2(15) of the VAT Act and is not covered by normal levy .....

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made liable to the tax burden, interest and penalty, under the presumptive provision of the VAT Act. 10.3 The petitioner submits that after conclusion of the investigation of the East Agartala P.S. Case No.164/2005, for the two missing trucks and the commodities, charge sheet was filed against 7 accused including the drivers of the trucks. The senior counsel reads the charge sheet to project that the wrongful loss of the goods carried by the transporter worth ₹ 13,89,750/- approx. was tak .....

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truck, it is well neigh impossible for them to rebut the presumption drawn against them and therefore, it is argued that pursuant to the direction issued by the Commissioner of Taxes on 9.2.2010, the quasi judicial authority should have applied his mind to the documents produced at the entry check gate for the gunny bags carried by the truck, to determine whether the petitioner has any connection at all with the goods or the truck No.AP-16/U 6287. 10.5 The transporter submits that the normal pr .....

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gate at Churaibari. 11.1 Representing the Revenue, Mr. B. Choudhury, the learned standing counsel submits that unless the legal presumption is rebutted by the party who is assessed to tax under Section 76(7) of the VAT Act, they can t escape the liability of tax, interest and penalty and accordingly the departmental lawyer argues that the assessing authority had committed no error, in making the presumptive assessment to tax. 11.2 The respondents contend that unless proof is produced that the lo .....

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sam but fail to produce appropriate endorsement from the exit check gate to show that goods have left Assam boundary, can be subjected to tax under the presumptive provision of Section 76(6) of the VAT Act. But in Sodhi Transport Co. vs. State of U.P. reported in (1986) 2 SCC 486, it is clarified by the Supreme Court on the distinction between actual facts and presumption, in the following words: …………………….. 14. A presumption is not in itsel .....

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and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances. ……………………….. 13. The above ratio makes it clear that when a transporter brings .....

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ed within a few days of the loaded goods being dispatched from Agartala and the charge sheet of the East Agartala P.S. Case No.164/2005 reflects that 6/7 accused are charged for misappropriation of the sheet rubber, valued at ₹ 13,89,750/- approx, which matches the value of goods, in the assessment order. The liability under the presumptive provision of Section 76(6) & (7) of the VAT Act is, inter alia, can be drawn against the driver, the person in-charge of the goods vehicle or the t .....

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the transporter may not be justified, as the transporter can t be expected to be personally present in every goods vehicle, operating under them. Therefore, the assessment of tax for the sheet rubber, carried by the two trucks for which the resultant G.R. Case No.955/2005, under trial, is not yet concluded, would not be justified. But even while giving this finding, it must be said that if the driver or the person in-charge of the goods vehicle are acquitted, the transporter can be made liable .....

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n entry in the T.P. in the rush of things, cannot entirely be ruled out. But the supporting documents, on the basis of which T.P. was issued for the gunny bags, must have been produced by the driver at the entry check gate at Churaibari. Hence if copies of these documents, which will reflect the date on which the goods commenced its journey from Tripura, are made available to the transporter, they may in turn, produce their business records to rebut the legal presumption, drawn against them. The .....

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is produced to show that the transporter had no connection with the gunny bags and the truck No.AP-16/U 6287, which entered the Churaibari Check Gate of Assam on 5.8.2005, it will not be logical to hold that the presumption is conclusive against the petitioner. After all, a fair and reasonable opportunity must be afforded to the party to show that actual fact is not as presumed and this is possible only when, all the documents carried by the truck No.AP-16/U 6287, are furnished to the transport .....

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