9911796707
TMI Blog1993 (8) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... e of entry 122 of the First Schedule to the Kerala General Sales Tax Act, 1963. The petitioner is also a dealer in other items, viz., spices, stationery goods and oils. The petitioner hired a tempo van bearing registration number KLG 7871 for effecting sales of milk powder through the van by employing a travelling salesman. On August 17, 1983, when the van was proceeding from Palakkad to Tirur, it was intercepted by the Intelligence Inspector at 8.10 hours at Kallekkad. It is stated that the salesman was in possession of delivery voucher dated August 17, 1993. According to the petitioner, the bill showed the quantity of milk powder handed over to him for sale. It is further stated that the sale bill was also available with the salesman. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the paper book. It is stated in annexure VI dated January 20, 1986 that at the time of checking of the tempo van, there was no record as contemplated under the Kerala General Sales Tax Act, 1963 and, therefore, the Intelligence Officer was satisfied that there is an attempt at evasion of tax in this case. In the appeal filed by the petitioner, the Appellate Assistant Commissioner, Agricultural Incometax and Sales Tax, Palakkad, by order dated February 8, 1988, held that there was no attempt at evasion of tax and the imposition of penalty is not justified. He cancelled the order imposing the penalty and directed refund of the amount. In the further appeal filed by the State before the Sales Tax Appellate Tribunal, Additional Bench, Palakkad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, will stand. 4. It was contended by counsel for the revision petitioner-assessee that even so, the penalty could be sustained only if there was an attempt to evade the tax due under the Act. The Tribunal held that since the transport was not accompanied by proper and valid records, as contemplated in section 29-A(2) of the Act read with rule 35(2) of the Rules, the natural presumption is that there was an attempt to evade the tax due under the Act to justify the imposition of penalty under section 29-A(4) of the Act. The discussion on this aspect is contained in paragraphs 8 to 10 of the order of the Appellate Tribunal. It was argued that in entering the above finding, that the penalty imposed is exigible, the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o us and in their bill they had already collected sales tax from us for these goods and hence the goods of theirs with us have already suffered sales tax. For all these stocks we are keeping day to day stock book for the goods which we receive and for which we effect sales. All these stocks have been incorporated in the stock book". The files also show that the plea was also raised orally that the transported goods are accounted once and that there was no evasion of tax. This aspect was not adjudicated by the Intelligence Officer when he levied the penalty by order dated January 20, 1986. In the appeal filed before the Appellate Assistant Commissioner, this plea was pointedly taken as ground No. 4. The revision petitioner has stated that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seller of the goods and the goods are not taxable in his hands, it may be a case where even if the transport was not accompanied by proper and valid documents, no penalty will be exigible. That is because it cannot be said that there was an attempt to evade tax due under the Act. This crucial aspect has not been properly adverted to or adjudicated by the Tribunal while holding that penalty is exigible in the instant case. We therefore, set aside the order of the Appellate Tribunal dated October 24, 1991 to this extent and order a remit of the matter to the Sales Tax Appellate Tribunal, Additional Bench, Palakkad, for a fresh and proper investigation in accordance with law. The revision is allowed to the above extent. 5.. We are distressed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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