9911796707
TMI Blog2025 (2) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... see's STA Nos. 542 to 573 of 2010 and negatived Revenue's STA Cross Appeal Nos. 845 to 876 of 2016. The net effect of this common order is that the Assessee is entitled to claim the benefit of input tax, the levy of penalty & interest having been upset. 2. The Petition was admitted by a Co-ordinate Bench of this Court vide order dated 28.05.2024 on the following questions of law: "(1) Whether the Tribunal was right in allowing the Respondent's Appeal and setting aside the disallowance of input tax credit claimed by the Respondent on purchases effected from dealers who had failed to discharge their tax liability on such sales? (2) Whether the Tribunal was right in allowing the Respondent's Appeal and setting aside the disallowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , freight vouchers/bills. d) in many cases the records were without vehicle numbers and in some the Registration Numbers furnished related to two wheelers/ three wheelers. Thus the very physical movement and consequently the delivery/receipt of goods became very doubtful; e) some of the dealers show similar addresses, if not same, in the invoices, and on investigation, no establishments were found to be operating from these addresses; and f) that the Respondent Assessee was unable to bring any of the registered dealers or their representatives before the Deputy Commissioner despite having undertaken to do so in writing. 3.2 Underlying the above findings is the fact that the selling dealers enumerated in the Reassessment Order hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue that the very approach of the Tribunal to the Appeals of the Assessee and cross-Appeals of the Department is juridically defective stands adumbrated and reasons for this are not far to seek: A reading of the Statements of Objects and Reasons of the Act makes it clear why the burden of proof is cast upon the Assessee u/s. 70. While the VAT regime was introduced to give relief from the cascading effects of tax (ie., tax on tax) on goods, the enforcement of the Act relied heavily on transparency, self-assessment & declaration, timely & specific invoicing, and truthful & timely filing of returns. Further, structure designed to give full credit or set-off for tax already paid in the chain of value addition or in earlier points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be gainfully disputed. The Assessment Officer having undertaken the investigation has formed an opinion as to there being a clandestine case of Bill Trading with the connivance. Once such an opinion is available in the very Assessment Order, it was open to the Assessee to dispel/dilute the same by producing evidentiary material. In fact, he had undertaken in writing to bring the representative of dealers to depose in his favour. But never a single step he took in that direction. It is not that despite calling, the representatives did not turn up. Assuming that they did not, nothing prevented the Assessee to go for subpoena. No explanation is offered why he did not avail that facility. To this needs to be added one militant fact that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sported in transport autos, again remains a question staring at the Assessee. One cannot be oblivious to the fact that a very small section of dealers could be unscrupulous, might be in varying degrees. Mr. There is force in the submission of learned AGA that the version of officials of the Tax Department, founded on evidentiary material as to the unscrupulous transactions cannot be lightly interfered for askance. Therefore, the Tribunal is not justified in upsetting the findings recorded by the Assessing Authority. Even the First Appellate Authority committed an error in upsetting the levy of penalty inasmuch as, there was absolutely no material warranting the same. 5.5 Learned AGA is more than justified in contending that the Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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