2015 (3) TMI 912 - HC - VAT and Sales Tax

Violation of section 76(2)(a) of the VAT Act - Imposition of Penalty u/s 76(6) - Non production of books of accounts - Held that - On perusal Section 76(6), it transpires that a reasonable opportunity has to be granted to the owner or a person duly authorized by such owner or the driver or the person incharge of the vehicle or carrier. - It is clear even by the brief facts as given by the petitioner that Brahma Prakash has been claimed by the petitioner himself, in the revision petition as petitioner's representative and he appeared and filed reply on behalf of the petitioner, in my view, the arguments advanced by the learned counsel for the petitioner cannot be accepted at all as they are contrary to the facts averred in the instant petition vis-a-vis the argument. Even otherwise, had Brahma Prakash Agarwal been a transporter, he could not have appeared and stated that he is unable to produce the books of accounts of the firm as the accountant was out of town. The respondent ACTO granted sufficient time of appearance and hearing on April 11, 2007 vide notice dated March 27, 2007 of more than weeks but the representative of the petitioner for the reasons best known requested to pass penalty order then and there. According to me the ACTO respondent had no option except to impose the penalty when the requirements were not complied with. What further enquiry was required to be made when petitioner did not want to avail of reasonable opportunity granted by the ACTO even for producing the books of accounts and supporting material. Further it is apparent on perusal of builty that the builty refers the name of sender Jindal and issued by Deepak Road Lines, Hissar, Haryana and the observations of the ACTO appears to be correct that the goods were transmitted from the factory of Jindal industries from Hissar to Kishangarhbas. Neither the petitioner submitted any clarification or certificate or affidavit from the so-called Jindal as to non-remittance of the goods from their factory to Kishangarhbas, on the contrary even the driver Deepak Kumar stated this fact before the ACTO that the vehicle was having loha girders which was loaded from the factory of Jindal Rolling Mills, Hissar at 4 p.m. and was going to Kishangarhbas from Hissar. In the light of these facts, no clarification or further claim was or even reply was filed by the petitioner-assessee before none of the authorities denying these facts. Even the petitioner had failed to produce the books of accounts and other supporting material respite ample opportunity having been granted and there was no occasion for the ACTO to have examined the books of accounts, in the case of Associated Steel Industries, Kota merely on the basis of statement of the driver, the finding could not have been against the petitioner-assessee. In my view, there can be no doubt about this fact and placing reliance solely, on the statement of driver no adverse inference could have been drawn but in the instant case, even the authorized representative of the petitioner submitted that he is unable to produce the books of accounts and other supporting material as well as the declaration form ST-18A and requested for passing an order then and there despite of time having been granted by the ACTO. Not only this, no reply nor any explanation or even clarification was submitted on behalf of the assessee-petitioner on records to refute the allegations/observations of the assessing officer. Burden lay on the petitioner which has not been discharged. The finding arrived at by the Tax Board, is a finding of fact in the light of the facts narrated hereinabove. - No illegality, irregularity or impropriety in the order passed by the Tax Board. No question of law arises in this petition - Decided against assessee.

Summary

Issues:
1. Imposition of penalty under section 76(6) of the Rajasthan Value Added Tax Act, 2003.
2. Validity of the penalty imposed on the petitioner-assessee.
3. Representation of the petitioner by Bramh Prakash Agarwal.
4. Contradictions in the evidence and statements regarding the transportation of goods.
5. Compliance with the legal requirements and burden of proof on the petitioner.

Issue 1: Imposition of penalty under section 76(6) of the Rajasthan Value Added Tax Act, 2003:
The case involved a sales tax revision petition challenging the imposition of a penalty under section 76(6) of the VAT Act. The petitioner-assessee contested the penalty imposed by the Rajasthan Tax Board, which upheld the penalty under section 76(6) after reversing the order of the Deputy Commissioner (Appeals) who had initially deleted the penalty. The penalty was imposed due to the violation of provisions of section 76(2)(a) of the VAT Act.

Issue 2: Validity of the penalty imposed on the petitioner-assessee:
The petitioner argued that the penalty was wrongly imposed as there was no show-cause notice issued to them, and the representative who appeared on their behalf was not authorized. The petitioner claimed the bill was genuine and that further inquiry should have been conducted by the authorities before imposing the penalty. The respondent-Department defended the penalty, stating that the evidence was against the petitioner and that the penalty was justified based on the contradictions in the statements and evidence provided.

Issue 3: Representation of the petitioner by Bramh Prakash Agarwal:
The representation of the petitioner by Bramh Prakash Agarwal was a point of contention. The petitioner claimed that Bramh Prakash was not authorized to represent them, while the respondent-Department argued that he appeared on behalf of the petitioner and requested for the penalty order to be passed immediately. The court noted that the petitioner referred to Bramh Prakash as their representative in the revision petition, contradicting the petitioner's argument against his representation.

Issue 4: Contradictions in the evidence and statements regarding the transportation of goods:
The case involved contradictions in the evidence and statements regarding the transportation of goods. The authorities found discrepancies in the bill and builty numbers, leading to the detention of the vehicle. The petitioner failed to provide clarifications or evidence to refute the observations made by the assessing officer. The court noted that no clarification or explanation was submitted to deny the facts presented by the authorities.

Issue 5: Compliance with the legal requirements and burden of proof on the petitioner:
The court analyzed the legal requirements under section 76(6) of the VAT Act, emphasizing the need to grant a reasonable opportunity to the owner or authorized representative before imposing a penalty. The court found that the burden of proof lay on the petitioner, which was not discharged adequately. The court distinguished previous judgments cited by the petitioner's counsel, stating that the facts of the present case did not align with those cases. The court upheld the decision of the Tax Board, dismissing the revision petition due to the lack of illegality or impropriety in the penalty imposition.

This detailed analysis of the judgment addresses the key issues involved in the case, including the imposition of the penalty, representation of the petitioner, contradictions in evidence, compliance with legal requirements, and the burden of proof. The court's decision was based on a thorough examination of the facts, legal provisions, and arguments presented by both parties.