2009 (12) TMI 858 - HC - VAT and Sales Tax

Non consideration of documents - Held that - The revisional authority, as the impugned order dated September 12, 2008 would reveal, though had acknowledged the presence of the documents furnished by the petitioner in support of its plea, did not at all apply its mind thereto to ascertain the relevance or the probative value thereof, vis-a-vis the legal presumption envisioned in section 46(15)(d) of the Act. Its decision to sustain the impugned assessment is clearly based on the comprehension that the said legal presumption is absolute in terms and does not admit of any evidence to the contrary to rebut the same. In the opinion of this court, this approach being apparently erroneous and illegal has vitiated the impugned order, the same being extinctive of the petitioner s right recognised by section 46(15)(d) of the Act. In the above view of the matter, the impugned order dated September 12, 2008 is hereby interfered with and is thus set aside. The matter stands remitted to the Commissioner of Taxes, Assam, the revisional authority for a fresh decision in accordance with law and with particular reference to section 46(15)(d) of the Act. As the impugned order is determined to be transgressive of section 46(15)(d) of the Act, the plea against maintainability of the proceeding is not entertained. The petition is thus partly allowed.

Issues Involved:
1. Challenge to the assessment order dated March 22, 2001.
2. Validity of the order dated September 12, 2008 by the Additional Commissioner of Taxes, Assam.
3. Presumption under section 46(15)(d) of the Assam General Sales Tax Act, 1993.
4. Consideration of documentary evidence submitted by the petitioner.
5. Maintainability of the petition due to non-exhaustion of alternative remedy.

Issue-wise Detailed Analysis:

1. Challenge to the Assessment Order Dated March 22, 2001:
The petitioner challenged the assessment order dated March 22, 2001, which imposed a tax liability of Rs. 15,89,419 under the Assam General Sales Tax Act, 1993. The petitioner, a proprietorship firm engaged in transporting Maruti vehicles, argued that it had duly surrendered transit passes with necessary endorsements, proving that the vehicles had exited Assam and entered Mizoram. However, the assessing authority did not consider these documents and proceeded to raise the tax demand.

2. Validity of the Order Dated September 12, 2008 by the Additional Commissioner of Taxes, Assam:
The Additional Commissioner of Taxes, Assam, upheld the assessment order on September 12, 2008. The petitioner contended that this decision was flawed due to the non-consideration of documentary evidence proving that the vehicles had exited Assam and were sold in Mizoram. The court found that the revisional authority did not scrutinize the documents provided by the petitioner, thereby failing to apply its mind to the evidence presented.

3. Presumption under Section 46(15)(d) of the Assam General Sales Tax Act, 1993:
Section 46(15)(d) of the Act creates a presumption that vehicles not surrendering transit passes within 30 days are deemed sold within Assam. The petitioner argued that this presumption is rebuttable and provided evidence to counter it. The court referenced the apex court's decision in Sodhi Transport Co. [1986] 62 STC 381, which held that such presumptions are rebuttable by reliable evidence. The court concluded that the revenue authorities must examine and scrutinize the evidence provided to rebut this presumption.

4. Consideration of Documentary Evidence Submitted by the Petitioner:
The petitioner submitted several documents, including certificates and affidavits, to prove that the vehicles had exited Assam and were sold in Mizoram. The court noted inconsistencies in the documents but emphasized that the certificate from the Superintendent of Taxes, Aizawl, North Zone, could not be disregarded without evidence of extraneous considerations. The court held that the revenue authorities failed to appropriately reconcile these documents and did not provide a reasonable opportunity for the petitioner to explain the omissions.

5. Maintainability of the Petition Due to Non-exhaustion of Alternative Remedy:
The respondent argued that the petition was not maintainable as the petitioner had not exhausted the alternative remedy of appeal before the Board of Revenue under section 5A of the Act. However, the court found that the impugned order was transgressive of section 46(15)(d) of the Act, thus entertaining the petition and partially allowing it.

Conclusion:
The court set aside the impugned order dated September 12, 2008, and remitted the matter to the Commissioner of Taxes, Assam, for a fresh decision in accordance with the law. The revisional authority was directed to independently consider and analyze all the materials on record, without being influenced by any observations made in the judgment. The petition was partly allowed, with no costs awarded.

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