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TMI Blog2023 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... of the dealer, in which following questions of law have been framed:- Sales/Trade Tax Revision No. 26 of 2023 (i) Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in deleting the amount of tax levied by the assessing authority when the rejection of account of books have been confirmed and illegally shifted the burden on the department? (ii) Whether on the facts and in the circumstances of the case the Commercial Tax Tribunal was legally justified in deleting the amount of tax of Rs. 72,50,000/-? Sales/Trade Tax Revision No. 27 of 2023 (i) Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in deleting the amount of tax levied by the assessing authority when the rejection of account of books have been confirmed and illegally shifted the burden on the department? (ii) Whether on the facts and in the circumstances of the case the Commercial Tax Tribunal was legally justified in deleting the amount of tax of Rs. 12,50,000/- as well as Rs. 25,000/- which was confirmed by the 1st Appellate Authority? 4. The aforesaid questions of law have been admitted by this Court vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including claim of any amount as input tax credit, shall lie upon him (assessee) and assessing authority shall presume the absence of such circumstances. He further submits that the opposite party claims that purchases have been made from outside the State of U.P., but the movement of the goods through various trucks could not be proved as the truck numbers provided for transportation of goods were found to be two-wheeler, small three-wheeler, passenger vehicles, etc. He further submits that the impugned orders are liable to be set aside and prays for allowing the revisions. 7. Per contra, learned counsel for the assessee - opposite party submits that by the impugned orders, the appeals have been allowed in part and rejection of books of account has been confirmed, but for fixing the turnover, the Department has no cogent reason or material to show that the goods have been purchased from unregistered dealers. He further submits that the opposite party has brought on record the invoices, in which the payment has been made through banking channels. The Mandi Parishad issued requisite forms and copy of the GR's and other document show that the goods were being purchased from outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any assessment proceedings where any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him, and in particular, the burden of proving the existence of the circumstances bringing the case within any of the exemptions, exceptions or reliefs under any provisions of this Act including claim of any amount as input tax credit, shall lie upon him and assessing authority shall presume the absence of such circumstances. 13. From perusal of the aforesaid provision, it is evidently clear that the burden of proof lies upon the dealer/opposite party. In other words, the burden of claim of ex U.P. purchases is squarely upon the opposite party, who has to discharge the said burden and not the Department. Merely showing the purchases through invoices from the registered dealer, will not enough and sufficient to proof that the purchases have been made bona fidely. 14. The Apex Court in the case of The State of Karnataka Vs. M/s Ecom Gill Coffee Trading Private Limited (Civil Appeal No. 230 of 2023, decided on 13.03.2023), while considering the pari materia of section 70 of the Karnataka Value Added Tax Act, 2003, where the burden was upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dealer, is not liable to be taxed, or liable to take at a lower rate, or that a deduction of input tax is available, such a dealer is liable to pay the penalty. Therefore, as observed hereinabove, for claiming ITC, genuineness of the transaction and actual physical movement of the goods are the sine qua non and the aforesaid can be proved only by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgment of taking delivery of goods, tax invoices and payment particulars etc. The purchasing dealers have to prove the actual physical movement of the goods, alleged to have been purchased from the respective dealers. If the purchasing dealer/s fails/fail to establish and prove the said important aspect of physical movement of the goods alleged to have been purchased by it/them from the concerned dealers and on which the ITC have been claimed, the Assessing Officer is absolutely justified in rejecting such ITC claim. 15. The Apex Court has held that the primary responsibility of claiming the benefit is upon the dealer to prove and establish the actual physical movement of goods, genuineness of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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