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TMI Blog2023 (6) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 2012-2013 and 2013- 2014. W.P.(C). No. 15401 of 2014 is filed challenging Exhibit P5 and P5(a) orders of assessment and penalty respectively in respect of the assessment year 2012-2013. While W.P. (C).No. 16473 of 2014 is filed challenging Exhibits P1 and P1(a), which are orders of assessment and penalty in respect of assessment year 2011-2012 and Exhibits P2 and P2(a) in respect of the assessment year 2013-2014. The essential contention of the petitioner is that he is a dealer in M sand, rock powder etc. and he is an assessee to sales tax on the rolls of the 1st respondent. It is stated that he is effecting purchase of items entirely within the State of Kerala and no purchase had been effected from outside the State. It is stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 dealer was aware that goods were being transported in his name. After the complaint submitted by the petitioner on 27.8.2012 only three loads passed through the check post that is on 29.08.2012, 31.08.2012 and 3.9.2012. It is, therefore, inferred that the petitioner had written the letter with mala fide intentions, since the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall lie on such dealer. It is further submitted that the petitioner had been put on notice of the entries in the KVATIS and that the petitioner could not place anything on record to show that the interstate purchases were not effected by him. It is further submitted that from 1st February, 2012 onwards electronic filing of declaration in Form 8F was made mandatory and therefore the vehicles could have passed the check post only with the due declaration submitted by the petitioner, who is the dealer within the State. 5. It is further submitted at paragraph 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the Vigilance and Anti-corruption Bureau conducted a raid at the residence and at the business place of the Petitioner and seized incriminating records. Photo copies of 123 Nos of 8B Bills received from the Vigilance Department shows that the sale bill numbers disclosed in the e-filed returns are different. Many seized bill books, were started with Bill No.1 and begins to issue on 27.04.2013, 20.07.2013 and 01.09.2013 respectively. Hence it reveals that the petitioner had issued parallel set of bills an thereby evades tax to the State exchequer." 6. I have considered the contentions advanced. Section 25 of the KVAT Act provides for assessment of escaped turnover. The provision gives the assessing authority the power to determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, I am of the opinion that 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 without giving such an opportunity to the petitioner is, therefore, unsustainable for want of a reasonable opportunity being granted to substantiate his case. 9. In the above view of the matter, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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