9911796707
TMI Blog2018 (7) TMI 1704X X X X Extracts X X X X X X X X Extracts X X X X ..... erala Value Added Tax Act, 2003 [for brevity "KVAT Act"]? (ii) Whether the Tribunal was correct in directing the penalty levied on sale of fixed assets to be deleted on the ground that the sale was reflected in the books of accounts, especially when under the KVAT Act there is no regular assessment contemplated wherein the Assessing Officer is mandated to look into the books of accounts before regular assessment? (iii) Whether the penalty imposed on sale of fixed assets could be deleted when the regime under the KVAT Act contemplates self assessment, which stands completed unless the Assessing Officer invokes the provisions in Section 25? 2. The Intelligence Officer inspected the premises of the assessee, a dealer in jewellery, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock register was not verified. 5. In this context, we have to notice Section 67 of the KVAT Act, which, by the Explanation, casts the burden of proof on the person who is alleged to have committed an offence leading to evasion of tax; which reads as under: "Explanation.- The burden of proving that any person is not liable to the penalty under sub-section (1) shall be on such person". 6. In the context of the burden being squarely on the shoulders of the assessee, it was for the assessee to seek summoning of the artisan and enable verification of the stock register. The assessee has not filed any application before the Intelligence Officer to summon the artisan. The assessee also did not produce the stock register and specifically poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly since there could be no contumacious conduct discernible from the action of the assessee. 9. We notice the decision of the Hon'ble Supreme Court in Sree Krishna Electricals, wherein the assessee was selling wet grinders. In the return, the assessee did not disclose the sales, since the assessee erroneously held a belief that the exemption available to spare parts of wet grinders would be available to a wet grinder itself. The Hon'ble Supreme Court found that the exemption would not be so available especially since the wet grinder sold by the assessee is a different product. However, on the question of penalty it was held that the assessee having disclosed the sale in its books of accounts, the Assessing Officer could have very ..... X X X X Extracts X X X X X X X X Extracts X X X X
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