TMI Blog2011 (10) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in the establishment. Four diaries, four note books, two bill books and a file containing order forms were seized from the establishment. On the following day, the revision petitioner along with one K.M. Althaf went to the office of the Intelligence Officer and gave a statement in the handwriting of the revision petitioner signed by K.M. Althaf stating that the establishment from where the documents were seized was run by Relax Catering Service which was owned by K.M. Althaf along with his brother K.M. Ashfak and that the revision petitioner was the General Manager. They requested for taking copies of the documents stating that the copies of the documents were required for complying the business orders. Accordingly, accepting the statement, the copies of the documents were furnished. On enquiry with the Commercial Tax Office, Irinjalakuda it was informed to the Intelligence Officer that M/s. Relax Todays Kitchen was having VAT Registration with TIN No. 32080949477 with effect from 01/04/2008 in the name of the revision petitioner as proprietor of the establishment. On further investigation, it was revealed that commercial gas connection was obtained in favour of the establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at equal amount of tax. Now these revisions. 3. Following are the questions of law raised in both the revisions: 1. The decision of the Appellate Tribunal that the petitioner was a binami of K.M. Althaf and K.M. Ashfak is correct on the basis of the material on record? Whether the penalty under Section 67 read with Section 26 of the Act is valid? 2. The estimate of turnover on the basis of information gathered from M/s. Best Gas Agencies, a third party, is valid in the light of the disallowance of cross-examination requested for by the petitioner? 3. Is it fare and proper to estimate the turnover only on the basis of data gathered from Indian Coffee Workers Co-operative Society without affording opportunity to appellant to cross examine the representative of the society, when it is sought for? Even otherwise can the estimate on that basis said to be fair and proper the two business are not similar in nature? 4. Is not the penalty unwarranted on the facts of the case? Is not the penalty retained, at any rate excessive? 4. We have heard Advocate Dr. K.V. Mohammedkutty, the learned senior counsel appearing for the revision petitioner and Sri. M. Mohammed Rafeeq, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n petitioner is a name lender because registration under the VAT Act was obtained in the name of the revision petitioner. The brochure and the statement, which was written by the revision petitioner in his handwriting and signed by K.M. Althaf, are documents coming under Section 84 of the VAT Act. It is legitimate to have a presumption that the contents therein are true and correct until the contrary is proved. The revision petitioner has not even attempted to impeach the documents. Since the revision petitioner had obtained registration under VAT Act, he can no way avoid the consequences of the failure to maintain accounts as well as the failure to file periodical returns. It is true that, if the revision petitioner is the sole owner, the finding of the Intelligence Officer confirmed in appeals may be a cloud on his title. Now it is pertinent to note that though a very high penalty was slapped against Althaf and Asfak, they didn't care to challenge it. Suppose they have no right, in our opinion, they would have assailed the order. Their silence looms large. When all these circumstances are taken together, we find little reason to diverge with the authorities below. We are of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utensils and other materials required for starting the business. Even by the documents seized by the Intelligence Officer from 01/04/2008 to 29/12/2008 the revision petitioner had done business for more than ₹ 35 Lakhs. Definitely, for doing such a voluminous business, the petitioner would have purchased necessary utensils and other items. The date of purchase of utensils would have been a good piece of document in support of the plea of the petitioner. But the petitioner had not cared to produce bills for purchase of those items. The non-production of such bills persuades us to infer that it was not produced for the reason that it may belie the argument. It is also relevant to note that the petitioner had not given any good explanation for taking gas connection one year before the actual commencement of the business. The normal presumption, though rebuttable, is that the gas supply was to the consumer. The revision petitioner had not at all ventured to rebut the presumption. Adding to that, there is no whisper for the petitioner that he had made any complaint to the gas manufacturer that the gas agency had made illegal supply of huge quantity to a non-registered consumer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Coffee Workers Co-operative Society had established so many restaurants throughout the State and doing good business. The Co-operative Societies Act under which it was established mandate to maintain true and correct account which is liable to be audited. In the normal course, there is nothing wrong in relying upon accounts maintained in terms of the statutory requirement for the purpose of best judgment assessment. It is also not disputed that Indian Coffee Workers Co-operative Society had been running its units at various parts of the State in competition with private parties. They have been sustaining their business with retail transaction. Whereas the petitioner has been doing bulk business, especially, in connection with the marriage and other mass programs. In the normal course, in such caterings there would be very good margin than retail restaurants running on competitive basis. So, by giving reliance to the input and output ratio of the Indian Coffee Workers Cooperative Society, in fact the revision petitioner was benefited, because, the turnout of the revision petitioner was calculated with reference to turnout of an establishment run with marginal profit. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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