TMI Blog2018 (1) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... s would clearly have no application in a case where the assessee was asserting that he was only processing the articles in question and not entering into any transaction of sale or purchase. There was not a shred of evidence, cogent or reliable to establish and prove that the revisionist was engaged in the sale or purchase of commodities - levy and imposition of tax cannot be sustained. Revision allowed. - Sales/Trade Tax Revision No. 1490 of 2007 - - - Dated:- 28-11-2017 - Hon'ble Yashwant Varma, J. For the Applicant : Aloke Kumar For the Opposite Party : S. C. ORDER Heard Shri Aloke Kumar, learned counsel for the revisionist and Shri A.C. Tripathi, the learned standing counsel. This revision has been preferred against the judgment rendered by the Tribunal on 15 September 2007. The assessee had, against the order of assessment, been granted relief by the first appellate authority which accepted its contention that it was not engaged in the sale and purchase or manufacture of articles so as to be exigible to tax under the UP. Trade Tax Act, 1948 [1948 Act]. The Tribunal has set aside this order by allowing the appeal of the Department in part and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of the 1948 Act. Shri Tripathi, learned standing counsel, on the other hand has taken the Court through the order passed by the assessing authority to establish and contend that from the large quantity of material which was found existing on spot as well as the machineries which were found established at the site, it was evident that the assessee was regularly entering into transactions of sale and purchase and the same were not being disclosed to the authorities under the Act. He submitted that bearing in mind the material which was gathered by the survey team, the levy of tax upon the assessee based upon the estimation of the assessing authority would merit no interference. It is these rival submissions, which fall for determination. At the very outset it must be noted that the entire backdrop of the view taken by the respondents is based upon the presence of articles in different quantities and machineries which were evidently found on the site. This aspect must be necessarily tested in light of the reply which the assessee had proffered. According to him, it was admitted that this material was being worked upon for and on behalf of individuals who paid to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him, and in particular, the burden of proving the existence of circumstances bringing the case within any of the exceptions, exemptions or reliefs mentioned in Section 3-A, Section 3-D, Section 4, Section 4-A, Section 4-B, or Section 7-D shall lie upon him and the assessing authority shall presume the absence of such circumstances. (2) Where any dealer claims that he is not liable to tax under Section 3-D in respect of any transaction of purchases: (a) any declaration made or certificate issued by him admitting to be the first purchaser and accepting the liability to pay trade tax on purchase of goods, shall be conclusive evidence of his liability to pay the trade tax on purchase of goods in respect of the transaction specified in such declaration or certificate; (b) the burden of proving the existence of facts and circumstances on the basis of which he claims such exemption from liability shall lie upon him, and in particular, the dealer shall also be liable to disclose full particulars of the person from whom he has purchased the goods in such transaction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill have to be satisfied of the requirements noted above. Without there being any material to show that the specified goods in the possession of the respondent have been brought into the Calcutta Metropolitan Area and that they were brought without payment of any tax leviable thereon, no tax can be levied under sub-section (3) of Section 14 even on a dealer. It cannot be lost sight of that the tax under the Entry Tax Act is a tax on the entry of the specified goods into the Calcutta Metropolitan Area and not on possession of the specified goods within the Calcutta Metropolitan Area. 21. However, the contention of Mr Chakravarty is that when specified goods are found in possession of a person and when he, on being required to produce before the authority any accounts, register or document under sub-section (6) of Section 14, has failed to do so, a presumption arises that the specified goods have been brought by him into the Calcutta Metropolitan Area without payment of tax. We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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