TMI Blog2019 (12) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... d machinery from M/s. Saibaba Industries claimed as capital goods by the assessee is not supported by any satisfactory reasons. The assessment order impugned deserves to be set aside - appeal allowed by way of remand. - WRIT PETITION No.50880/2019 (T – RES) - - - Dated:- 19-11-2019 - MRS. S.SUJATHA J. PETITIONER (BY SRI K.M. SHIVAYOGISWAMY, ADV.) RESPONDENT (BY SRI T.K. VEDAMURTHY, AGA.) O R D E R Learned Additional Government Advocate accepts notice for the respondent. 2. The petitioner has assailed the reassessment order passed by the respondent-Authority under the provisions of the Karnataka Value Added Tax Act, 2003 [ Act for short] relating to the tax periods April 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Learned Additional Government Advocate supporting the order impugned has referred to the Division Bench Ruling of this Court in the case of M/s. Bhavani Enterprises V/s. The Additional Commissioner of Commercial Taxes [S.T.A.No.71/2013] [D.D. 13.06.2018] to contend that the burden of proof lies on the assessee in terms of Section 70 of the Act. No material has been placed to establish the factum of payment of taxes by the petitioner to the selling dealer. In the absence of returns filed by the selling dealer, it has to be inferred that the selling dealer is a bogus dealer and the transaction is not genuine. In such circumstances, the denial of input tax credit cannot be held to be unjustifiable. 7. Having heard the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, burden of proving that the claim of input tax credit is correct, is squarely upon the Assessee who never discharged the said burden in the present case. The first Appellate Authority was absolutely wrong in setting aside the penalty assuming such burden of proof to be on the Revenue. The Revisional Authority, was therefore, perfectly justified and within his jurisdiction to restore the order of penalty in these circumstances. We also find that at least two of the dealers from whom input tax credit invoices were claimed in the present case were for consideration before this Court in Microqual s case also [supra], namely, M/s. S.L.V. Enterprises and M/s. T.D. and Company. Therefore, the same or similar bogus selling dealers regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. 12. Even as regards denial of input tax credit relating to the purchase of old used machinery from M/s. Saibaba Industries claimed as capital goods by the assessee is not supported by any satisfactory reasons. 13. For the aforesaid reasons, the assessment order impugned deserves to be set aside. Accordingly, the impugned order and the demand notice both dated 30.03.2019 at Annexures-F and G are set aside and the matter is remanded to the Assessing Officer to reconsider the matter in the light of the observations made herein above. All the rights and contentions of the parties are left open. Compliance shall be made by the respondent in an expedite manner. Writ petition stands disposed of in terms of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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