2016 (9) TMI 611 - HC - VAT and Sales Tax

Levy of tax - Section 28-B of the U.P. Trade Tax Act, 1948 - imposition of penalty - Section 15A(1)(g) of the 1948 Act - sale of vehicle on hire-purchase - Form - 34 - whether the rebuttable presumption which stood raised under Section 28-B stood discharged or not? - Held that - Under a rule of rebuttable presumption all that a person is obliged to do is to establish by way of evidence that the real fact is not as presumed. The respondents had before them not just the invoices of sale executed by the revisionist in favour of Motor and General Sales Limited but also the delivery and sale invoice executed in favour of Naseem Ahmad. These documents evidenced a sale by way of hire purchase outside the State of U.P. The documents and evidences so led clearly tended to dislodge the rebuttable presumption raised. Whether the test of tending to show is applied or the test of preponderance of probability , it is apparent that the presumption raised against the revisionist stood clearly discharged. Whether Naseem Ahmad is treated to be the owner of the vehicle for all practical purposes or is viewed as the person in charge of the vehicle, the liability of tax and penalty foisted upon the assessee is unjustified and cannot be sustained. Revision set aside - decided in favor of assessee.

Summary

Issues Involved:
1. Levy of tax under Section 28-B of the U.P. Trade Tax Act, 1948.
2. Imposition of penalty under Section 15A(1)(g) of the U.P. Trade Tax Act, 1948.
3. Ownership and liability in a hire purchase agreement.
4. Rebuttable presumption under Section 28-B.

Detailed Analysis:

1. Levy of Tax under Section 28-B of the U.P. Trade Tax Act, 1948:
The revisionist, a company based in Maharashtra, sold a motor vehicle to M/s Motor & General Sales Limited, Karnal, Haryana. The vehicle was later sold on hire purchase to Naseem Ahmad, who obtained a Form-34 for transporting the vehicle to Bihar but did not cancel it at the exit check-post in U.P. The Assistant Commissioner, Trade Tax, levied a tax of ?39,000 on the revisionist for violating Section 28-B of the U.P. Trade Tax Act, 1948. Section 28-B mandates obtaining a transit pass at the first check-post upon entry into U.P. and surrendering it at the last check-post before exiting. Failure to do so raises a presumption that the goods were sold within U.P. This presumption is rebuttable, as established in Sodhi Transport Co. Vs. State of U.P. and Heinz India (P) Ltd. Vs. State of U.P., wherein the Supreme Court held that such a presumption shifts the burden of proof to the accused to show that the goods were not sold within the state.

2. Imposition of Penalty under Section 15A(1)(g) of the U.P. Trade Tax Act, 1948:
A penalty of ?1,24,800 was imposed on the revisionist for the same transaction. The revisionist argued that the sale took place in Haryana, and the vehicle was sold to Naseem Ahmad before entering U.P. The hire purchase agreement indicated that Naseem Ahmad was the owner for all practical purposes, and any infraction of registration laws by him should not attach liability to the revisionist.

3. Ownership and Liability in a Hire Purchase Agreement:
The revisionist contended that under the hire purchase agreement, Naseem Ahmad was deemed the owner of the vehicle, referencing Asea Brown Boveri Ltd. Vs. Industrial Finance Corporation of India and Ors. and Commissioner Trade Tax, U.P., Lucknow Vs. S/s Shrimati Harjeet Kaur, Kanpur. The Supreme Court in Asea Brown Boveri Ltd. clarified that in a hire purchase agreement, the borrower (Naseem Ahmad) becomes the owner for all practical purposes, bearing all risks and enjoying full rights over the asset.

4. Rebuttable Presumption under Section 28-B:
The court examined whether the rebuttable presumption under Section 28-B was discharged. The revisionist provided evidence, including sales invoices and delivery receipts, showing the vehicle was sold outside U.P. This evidence was deemed clear and convincing, meeting the standard of proof required to rebut the presumption. The court noted that the department did not provide any independent material or evidence to counter the revisionist's claims.

Conclusion:
The court found that the evidence presented by the revisionist successfully rebutted the presumption of sale within U.P. The hire purchase agreement indicated that Naseem Ahmad was the practical owner of the vehicle, absolving the revisionist of liability. Consequently, the levy of tax and imposition of penalty were unjustified. The revisions were allowed, and the orders of the authorities below were set aside, with the questions answered in favor of the assessee.