9911796707
TMI Blog2004 (12) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... within the State of U.P. by the applicant and, accordingly, estimated taxable turnover at Rs. 1,34,41,900. Applicant filed appeal against the assessment order before the Deputy Commissioner, Trade Tax, Ghaziabad, which was dismissed. Applicant further filed second appeal before the Trade Tax Tribunal, Ghaziabad, which was allowed vide order dated September 22, 1993 and the case was remanded back to the assessing officer with the direction to frame the assessment order afresh after confronting the applicant with the original form XXXIV or panji 3 duly signed by the person-incharge of the vehicle. It was also directed that the complete name and address of the driver/owner of the vehicle should be provided. It is alleged that after the order of the Tribunal remanding back the case to the assessing officer, applicant filed an application before the Assistant Commissioner, Trade Tax, Ghaziabad, and stated that none of the alleged form XXXIV relates to the applicant and the applicant be provided with original form XXXIV or panji 3 before drawing any adverse inference against the applicant. It was also stated that the Trade Tax Tribunal had directed the assessing officer to confront the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on number mentioned were permanent registration number of Punjab, Haryana and Delhi States while the applicant despatched the tractor on temporary registration number. He submitted that inspite of directions given by the Tribunal for the confrontation of original panji 3 signed by the vehicle-in-charge, same had not been confronted and as such the direction given by the Tribunal had not been complied with. Therefore, adverse inference drawn by the authorities below including the Tribunal against alleged 52 entries in panji 3 is illegal. Learned Standing Counsel supported the order of the Tribunal. I have perused the order of the Tribunal and the authorities below. Tribunal confirmed the order of the first appellate authority on the ground that the first appellate authority perused the entries of panji 3 in which the name and address of the applicant, place of movement of tractor and other details are mentioned which proves that the alleged form XXXIV was obtained by the applicant which could not be surrendered at the exit check-post. Tribunal, accordingly, held that the presumption drawn by the assessing authority about the sale of goods is justified. In my opinion, order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exit check-post surrender one copy of the trip sheet and allow the officer-in-charge of the check-post to inspect the documents, consignments and goods in order to ensure that the consignment being taken out of the State are the same as mentioned in the trip sheet. The officer-in-charge of the exit check-post shall issue a receipt on the other copy of the trip sheet surrendered by such driver or person-in-charge of the vehicle. (4) The officer-in-charge of the exit check-post shall have the power to detain, unload and search the contents of the vehicle for the purpose mentioned in sub-rule (3)." The provision of section 28B came up for consideration before the honourable Supreme Court in the case of Sodhi Transport Co. v. State of U.P. reported in [1986] 62 STC 381; [1986] UPTC 721. In the said case the apex court upheld the validity of the provision of section 28B on the ground that it is a machinery provision to check the evasion of tax. It has been further held that presumption under section 28B of the Act is rebuttable. Following observations of the honourable Supreme Court are referred below: "Section 28B of the Act is a machinery section to check the evasion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d who has made a declaration that the goods are brought into the State for the purpose of carrying them outside the State should actually take them outside the State. If he hands over the transit pass while taking the goods outside the State then there would be no liability at all. It is only when he does not deliver the transit pass at the exit check-post as undertaken by him, the question of raising presumption against him would arise. We shall revert to the question of presumption again at a later stage, but it is sufficient to say here that these provisions are enacted to make the law workable and to prevent evasion. Such provisions fall within the ambit and scope of the power to levy the tax itself. . . . A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV, retains one copy of form XXXIV and return one copy of said form XXXIV after necessary endorsement to the driver or vehicle in-charge. In case, if the officer concerned does not receive information from the exit check-post about surrender of form XXXIV issued by the entry check-post or receives information that said form XXXIV has not been surrendered, necessary proceeding is being taken on the presumption that goods have been sold against the owner of the vehicle or person-in-charge. In such proceeding, it is obligatory to confront the copy of form XXXIV which bears the signature of the driver or the vehicle-in-charge. Form XXXIV is the primary evidence on the basis of which the proceeding is initiated and the adverse inference is being proposed and, therefore, it has to be confronted. It is the case of the Revenue that they maintain panji 3 at the entry check-post in which the details of form XXXIV are being incorporated as a record. In my opinion, panji 3 is the record maintained by the revenue authority and has no concern with the driver or person-in-charge. In panji 3, the signatures of the driver or the persons concerned are not taken and, therefore, entry of panji 3 cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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