2018 (7) TMI 1704 - HC - VAT and Sales Tax

Whether the Tribunal was correct in deleting the addition made on the strength of a cancelled issue voucher of gold, on the ground that the Intelligence Officer has not summoned the goldsmith and also not verified the stock register; when burden of proving that there is no attempt to evade tax is squarely on the assessee as statutorily prescribed under Section 67 of the Kerala Value Added Tax Act, 2003? - Held that - In the context of the burden being squarely on the shoulders of the assessee, it was for the assessee to seek summoning of the artisan and enable verification of the stock register. The assessee has not filed any application before the Intelligence Officer to summon the artisan. The assessee also did not produce the stock register and specifically point out the entry made to absolve himself from the liability. The burden stands undischarged - the Tribunal erred insofar as casting the burden on the Intelligence Officer; contrary to the statutory prescription. Whether the Tribunal was correct in directing the penalty levied on sale of fixed assets to be deleted on the ground that the sale was reflected in the books of accounts, especially when under the KVAT Act there is no regular assessment contemplated wherein the Assessing Officer is mandated to look into the books of accounts before regular assessment? - Held that - The burden to prove that the artisan had refused to take the gold as per the issue voucher which led to its cancellation was that of the assessee. The assessee ought to have sought for summoning the artisan to be examined before the Intelligence Officer; which the assessee failed to do. The assessee also failed to discharge its burden by enabling verification of the stock register, by producing it and pointing out the specific transaction which stood cancelled; recovered by the Intelligence Officer - deletion of penalty set aside. Whether the penalty imposed on sale of fixed assets could be deleted when the regime under the KVAT Act contemplates self assessment, which stands completed unless the Assessing Officer invokes the provisions in Section 25? - Held that - The assessee had filed an incorrect return and had not returned the sale of fixed assets nor paid tax in accordance with that. Even after issuance of notice on penalty, the assessee filed an annual return without showing the aforesaid liability. A revision of the annual return was carried out and only then the liability satisfied - penalty affirmed - With respect to the quantum of penalty on the sale of fixed assets, since the assessee had filed revised return, paid tax and also interest from the due date, the same can be reduced to the actual amount of tax sought to be evaded. Revision allowed in part.

Summary

Issues:
1. Addition made on the strength of a cancelled issue voucher of gold.
2. Penalty levied on the sale of fixed assets.

Analysis:

Issue 1: Addition made on the strength of a cancelled issue voucher of gold
The case involved discrepancies found during an inspection by the Intelligence Officer at the premises of the assessee, a dealer in jewellery. The first appellate authority and the Tribunal confirmed these discrepancies. The questions of law revolved around a cancelled issue voucher of gold and the penalty imposed. The cancelled voucher indicated the transfer of 2000 grams of gold to an artisan, which was later cancelled. The Tribunal deleted the addition based on the cancelled voucher, citing lack of summoning the artisan and verification of the stock register by the Intelligence Officer. However, Section 67 of the KVAT Act places the burden of proof on the person alleged to have committed an offence leading to tax evasion. The burden was on the assessee to prove no attempt to evade tax, but they failed to summon the artisan or enable verification of the stock register. Consequently, the Tribunal erred in casting the burden on the Intelligence Officer, leading to the deletion of the penalty, which was set aside by the Court.

Issue 2: Penalty levied on the sale of fixed assets
Regarding the penalty imposed on the sale of fixed assets not disclosed in the monthly return, the Court considered the argument that the transaction was recorded in the books of accounts. Citing previous decisions, the Court emphasized that when there is disclosure in the books of accounts, no penalty should be imposed as there is no contumacious conduct. However, under the KVAT Act's self-assessment regime, the obligation on the assessee to file a correct return is more stringent. The Court distinguished cases under different tax regimes where regular assessments were conducted. In this case, the assessee filed an incorrect return, did not disclose the sale of fixed assets, and only rectified the liability after notice of penalty. The Court ruled in favor of the revenue, upholding the penalty on the sale of fixed assets but reducing it to the actual amount of tax sought to be evaded due to the revised return and payment made by the assessee.

In conclusion, the Court answered the questions of law in favor of the revenue and against the assessee, upholding the penalty on the cancelled issue voucher of gold and the sale of fixed assets with modifications on the quantum of penalty.