2014 (5) TMI 608 - HC - VAT and Sales Tax

Second sales exemption of plastic granules genuine purchases - Held that - The mere fact that the assessee had produced invoices from the said Brij Khandelwal, would not discharge the burden of proof that there was, in fact, a sale of goods from an existing dealer in goods, resulting in the transfer of property of goods - The invoices and the names given, including the address, do not discharge the assessee from substantiating the contention that there was a sale by Brij Khandelwal to result in transfer of property in goods - In the absence of any material to support the case of the assessee, particularly to prove the link between Brij Khandelwal and the other two firms in whose names the invoices had been raised, no justification is found in accepting the case of the assessee to grant exemption, as had been done by Tribunal and Appellate AC - With the burden of proof on the issue not discharged by the assessee as to the sale of goods in his favour, on the admitted case that it was only Brij Kandelwal who had had the transaction with the assessee, the Tribunal as well as the Appellate Assistant Commissioner misdirected themselves in deciding the case in favour of the assessee by holding that the registration of S.R.Enterprises and Sudarsan Enterprises was cancelled only subsequent to the sales and thus, the claim for exemption could not be rejected. No Evidence No proof of transfer of goods - Held that - When the link between the seller and the alleged seller had not been proved, the case of the Revenue cannot be slightly dismissed - In a revision where question of law alone is involved, normally this Court would not disturb the findings as given by two authorities - However, when the findings are without any material and there is perversity writ large on the face of it, it is worth accepting the case of the Revenue, more so in the context of the detailed discussion by AO, pointing out to the infirmities in the stand of the assessee - In the circumstances, the order of the Tribunal is set aside and the assessment order is restored. Levy of penalty - Held that - It is no doubt true that the assessee had not discharged the burden as regards his claim on exemption - But then, considering the law on the levy of penalty that the degree of proof required for the purpose of levy of penalty is more than what is normally required for making the assessment and that in this case, the assessment had been upheld by this Court on the ground that the assessee had not discharged the burden of proof as regards the purchase from an existing dealer, the same line of reasoning cannot be accepted for the purpose of upholding the levy of penalty - Hence, the benefit of doubt herein for levy of penalty has to be considered as a vital factor in sustaining the order of the Tribunal in cancelling the penalty - In the circumstances, the order of the Tribunal agreed only as regards the levy of penalty - As regards the assessment, Revision stands allowed Decided in favour of Revenue.

Issues involved:
1. Assessment of second sale exemption on plastic granules for the assessment year 1993-94.
2. Disallowance of exemption by the Commercial Tax Officer based on alleged fictitious purchases.
3. Appeal before the Appellate Assistant Commissioner and subsequent appeal before the Tribunal.
4. Dispute regarding the existence of the seller and the link between the seller and the alleged seller.
5. Burden of proof on the assessee to establish the sale from existing dealers.
6. Decision on the levy of penalty in the case.

Detailed Analysis:
1. The case involved the assessment of second sale exemption on plastic granules for the assessment year 1993-94. The Tribunal rejected the State's appeal, upholding the assessee's claim to the exemption.
2. The Commercial Tax Officer disallowed the exemption based on alleged fictitious purchases made by the assessee. The officer found discrepancies in the documentation and concluded that the purchases were not genuine.
3. The Appellate Assistant Commissioner set aside the assessment, noting that the assessee produced purchase bills from registered dealers and disputed the cancellation of registration certificates. The Revenue appealed to the Tribunal.
4. The dispute centered around the existence of the seller and the lack of evidence linking the alleged seller to the actual transactions. The Tribunal dismissed the Revenue's appeal citing lack of counter-evidence.
5. The burden of proof rested on the assessee to establish the sale from existing dealers. The Tribunal and the Appellate Assistant Commissioner were criticized for accepting the assessee's claims without sufficient evidence.
6. The judgment also addressed the levy of penalty, emphasizing that the degree of proof required for penalty is higher than for assessment. The Tribunal's decision to cancel the penalty was upheld, while the assessment order was set aside and restored.

In conclusion, the High Court set aside the Tribunal's order regarding the assessment but agreed with the decision on the levy of penalty. The judgment highlighted the importance of substantiating claims with evidence and the burden of proof on the assessee in establishing transactions for tax exemptions.

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