TMI Blog2023 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... sh the actual physical movement of goods, genuineness of transactions, etc. In the case in hand, from the verification of the registration numbers of the trucks provided by the dealer, it was found that some of them are of two-wheeler, passenger vehicles, small three-wheeler and some of them could not be found. Therefore, the dealer has miserably failed to prove the actual physical movement of goods which deemed to have been purchased from ex UP dealers. Once the dealer failed to establish the said purchases and the physical movement of the same, the claim for non-taxability cannot be accepted - Once the dealer has failed to prove its purchases from registered dealer, the levy of entry tax treating the same to be purchases from outside the local area and levying of entry tax on the HDEP bags is also justified. Revisions are allowed with a cost of Rs. 5,000/- each, which shall be deposited with the Department within a period of one month from today. - Hon'ble Piyush Agrawal, J. For the Revisionist : Avinash Chandra Tripathi For the Opposite Party : Vishwjit ORDER HON'BLE PIYUSH AGRAWAL, J. 1. Heard Shri B.K. Pandey, learned Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and various transactions were found to be not properly recorded in the books of account, on the basis of which best judgement assessment was made after rejecting the books of account. The seized documents could not be explained properly and the purchases sales were made beyond the record. The opposite party claimed the purchases to be made outside the State of U.P. and supporting documents were submitted. But on verification of the registration numbers of the vehicles, it was found that some of the vehicle numbers were not traceable and some of them were found to be of auto-rickshaw, two-wheeler, passenger vehicles, etc. On the said basis, enhancement of turnover was made treating the same being purchased within the State of U.P., since the goods were treated to be purchased from unregistered dealer. Moreover, only tax was imposed upon the HDEP bags. Feeling aggrieved by the order of the assessing authority, the opposite party preferred appeal before the 1st appellate authority, who, by the order dated 23.12.2021, partly allowed the appeal, against which cross-appeals were preferred before the Commercial Tax Tribunal. The Tribunal, by the impugned judgement order, has confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2016; wherein, various incriminating materials were found, including loose parchas and books of account was not up-to-date. On the basis of these findings, the books of account were rejected and affirmed upto the Tribunal. 10. It is also admitted at Bar that against the rejection of books of account, the opposite party has not preferred any revision. The only issue remained with regard to fixation of turnover after rejection of the books of account. The dealer has accepted that purchases have been made. If the purchases were made from the registered dealer, then the liability of purchase tax will not arise and if the same were made from unregistered dealer, then the liability of purchase tax will be upon the dealer. The opposite party dealer, in support of the purchases, has submitted that the goods have been purchased through invoices, payments were made through banking channel, under the Mandi Adhiniyam requisite forms were submitted for movement of goods as well as the entry in the Mandi area, etc. 11. The opposite party has also submitted the detail of vehicles which were used for the transportation of the said purchases, along with registration numbers. On ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct is squarely upon the assessee who has to discharge the said burden. Merely because the dealer claiming such ITC claims that he is a bona fide purchaser is not enough and sufficient. The burden of proving the correctness of ITC remains upon the dealer claiming such ITC. Such a burden of proof cannot get shifted on the revenue. Mere production of the invoices or the payment made by cheques is not enough and cannot be said to be discharging the burden of proof cast under section 70 of the KVAT Act, 2003. The dealer claiming ITC has to prove beyond doubt the actual transaction which can be proved by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment particulars etc. The aforesaid information would be in addition to tax invoices, particulars of payment etc. In fact, if a dealer claims Input Tax Credit on purchases, such dealer/purchaser shall have to prove and establish the actual physical movement of goods, genuineness of transactions by furnishing the details referred above and mere production of tax invoices would not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hysical movement of goods which deemed to have been purchased from ex UP dealers. Once the dealer failed to establish the said purchases and the physical movement of the same, the claim for non-taxability cannot be accepted. 17. The Tribunal has failed to appreciate this vital aspect of the matter that the actual physical movement of the goods could not be proved beyond doubt as claimed by the opposite party dealer. Surprisingly, the observation of the Tribunal in shifting the burden upon the Department contrary to the provisions of section 16 of the UP VAT Act, is beyond imagination and therefore, the same is perverse. 18. Once the dealer has failed to prove the actual physical movement of goods, the presumption drawn by the assessing authority treating the purchases from unregistered dealer is justified. 19. Once the dealer has failed to prove its purchases from registered dealer, the levy of entry tax treating the same to be purchases from outside the local area and levying of entry tax on the HDEP bags is also justified. 20. In view of the aforesaid facts circumstances of the case, the judgement order dated 04.11.2022 passed by Commercial Tax T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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