TMI Blog2019 (6) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 3-6-2019 - MR C. K. ABDUL REHIM AND MR R. NARAYANA PISHARADI, JJ. For The APPELLANT : ADV. SRI.JOHN VARGHESE For The RESPONDENT : SR.GP-SRI.MOHAMMED RAFIQ JUDGMENT Abdul Rehim,J In the above revision petition filed under Section 63 of the Kerala Value Added Tax Act, 2003 ('the KVAT Act' for short), the challenge is against an order passed by the Kerala Value Added Tax Appellate Tribunal, Ernakulam in T.A (Vat) No. 273/2017, dated 02.04.2018. By the impugned order, a second appeal filed by the revision petitioner against an appellate order of the Appellate Assistant Commissioner, Department of Commercial Taxes, Thrissur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, and copies of the relevant pages of Stock Register etc. On verification of the books of accounts produced, the Intelligence Officer was convinced with the fact that the transactions were duly reflected in the books of accounts. It was specifically noticed that drawal of the Bank Guarantee for furnishing security is also incorporated in the books of accounts. But the Intelligence Officer observed that, however no evidence to prove that the vehicle was laid down due to breakdown and subsequent repair which may have done at any workshop . The Intelligence Officer further observed that, if the consignment was not intercepted by the Intelligence Squad, the entire transaction would not have entered in the books of accounts of the deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime lag in the actual transport is sufficient ground to impose penalty under Section 47(6) of the KVAT Act. Therefore the order of the Intelligence Officer was confirmed. 5. In the second appeal, the tribunal found that, the Intelligence Officer was justified in detaining the goods and in demanding security on the basis of a presumption that there was attempt at evasion of payment of tax. The tribunal found that, the certificate produced by the revision petitioner is not sufficient to prove the fact that the delay occurred due to mechanical defect of the vehicle. Finding that the date of delivery and despatch is not mentioned in the invoices, there can be sufficient inference that there was an attempt to evade payment of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible if the Officer has reason to suspect that the person transporting the goods is attempting to evade payment of tax due under the Act. But under sub-section (6), the authorised officer after conducting an enquiry by giving the party an opportunity of being heard should find that, there has been an attempt to evade the tax due under this Act, (emphasis supplied). In the case at hand, the Officer detaining the goods suspected chances for multiple transaction of the goods by using the same invoices. For maintaining such a suspicion, two reasons are stated in the notice issued under Section 47(2). One is that, the invoice is dated 27.3.2012, but the interception was at 3:45 p.m on 24.07.2012. Secondly, the date of delivery or the date of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crucial invoices were made at any subsequent point of time. All entries corresponding to the invoices are discernible from other Registers and Books kept in the course of the business. The authority cannot allege that the invoices which accompanied the transport are one created without making necessary entries in the books of account or that the invoices which accompanied the transport were created without making necessary entries in the books of accounts. Under such circumstances, multiple transport using the same invoices can be attributed only if there is any evidence to infer that the transport which was intercepted was a second transport using the same invoices. The Officer conducting the enquiry has not made any verification as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is clearly one month predated. In the said case, the tribunal exonerated them from the liability of penalty by merely holding that the transaction was seen entered in the books of accounts. This Court had reversed the finding by analysing other circumstances such as placing of the purchase orders and a subsequent letter issued by the purchaser intimating shortage of space etc., on the basis that they are not genuine. We cannot deduce any legal proposition from the said judgment that, whenever there occurr a time gap in the transport, attempt at evasion of payment of tax can be inferred as established. 7. On the facts analysed as above, we find that the Enquiry Officer had failed to conduct a proper enquiry in the matter an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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