TMI Blog2023 (6) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations levelled against him has been rejected largely relying on Section 9 of the KVAT Act stating that the burden of proving that any transaction of a dealer is not liable to tax under the Act shall lie on the dealer. Reasonable opportunity as provided in the statute has to be a full and proper opportunity to the dealer not only to raise his contentions, but also to make available and rely on material which would support his contentions - In the instant case, the petitioner had relied on a letter dated 28.7.2012 by which he had informed the authorities that there was an attempt to misuse his TIN for bringing in consignments into the State. It is to be noted that it was only from 1st February, 2012 that the electronic filing of declaration in Form 8F had been made mandatory. The assessment years are 2011-12, 2012-13, 2013-14. In the facts and circumstances of the instant case, the petitioner ought to have been given a full and proper opportunity to substantiate his contention that the consignments which passed the check posts purportedly in the name of the petitioner were actually not intended for delivery to the petitioner. The assessment completed and the penalty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaints had been raised before the authorities on 27.8.2012 pointing out that fraudulent operations were being done and requesting that no consignment should be allowed to pass through check posts without specific authorisation or departmental delivery note issued by the Commercial Tax Officer. It is stated that the petitioner had also specifically requested a chance to verify the details of the transport by making available copies of check post declarations, authorisation letter/departmental delivery note and transport details and requesting for time for filing a proper explanation. He had also sought for an opportunity for cross-examining the driver of the lorry in which the goods in question are transported and the persons who have signed and filed the declarations before the check post authorities. It is further stated that 25% addition towards GP and two times addition for probable omission and suppression was excessive and unwarranted. 2. On considering the reply, the assessment officer found it devoid of merits, in view of Section 9 of the KVAT Act where the burden of proof to show that any transaction is not liable to tax is cast on the dealer. It is stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 4,5 and 6 of the counter affidavit as follows:- It is submitted that as per Section 46 (3) (d) read with Rule 66(6) of the KVAT Act and Rules every dealer shall file a declaration as may be prescribed when the vehicle or vessel enters or leaves state limits. As per Circular No. 16/2011 from 1st October 2011 onwards all consignments crossing the Commercial Tax check Post should declare the consignment details online and print out the e-token generated by the system should accompany the consignments along with other statutory documents. Hence it is very clear that the dealer himself was aware of these consignments transported through the commercial Tax Check Post. Hence the contention raised in this regard has no merit. 5. The Interstate purchase details utilized for assessment were gathered from the Check post transaction module on KVATIS. The KVATIS is defined in Rule 2 (ia) of the Kerala Value Added Tax Rules, 2006 and under section 84 (ii) of the KVAT Act, the document can be admitted in evidence unless the contrary is proved. Hence the veracity of it cannot be challenged. In the pre-assessment notice, all details such as Check Post Entry Date, Consignor, Invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the user identification number and password allotted to him by the assessing authority or the Commissioner shall be on such dealer. In the instant case the assessment periods are from 2011-2012 onwards. Admittedly, it is only in February, 2012 the e-filing of declarations in Form 8F itself was made mandatory. The petitioner had approached the competent authorities on 28.7.2012 pointing out that there is misuse of his TIN number, for bringing in consignments into the State and that he was not the recipient of such consignments. The contention that the said request had been made only after all the deliveries had been effected can also not be accepeted in view of the fact that Exhibit P2 assessment orders challenged in W.P.(C). No. 16473 of 2014 relate to consignments during the period 25.4.2013 to 2.10.2013. 7. In the above factual situation, the contention raised by the respondents that consignments could not have crossed the check posts at the relevant time without the petitioner uploading the delivery notes or the declarations in Form 8F using his secret PIN number cannot be accepted. 8. Having considered the contentions advanced, I am of the opinion that the specific c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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