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TMI Blog2009 (12) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with law and with particular reference to section 46(15)(d) of the Act. As the impugned order is determined to be transgressive of section 46(15)(d) of the Act, the plea against maintainability of the proceeding is not entertained. The petition is thus partly allowed. - W.P. (C) No. 5365 of 2009 - - - Dated:- 23-12-2009 - AMITAVA ROY , J. JUDGMENT:- AMITAVA ROY J. In challenge is the assessment order dated March 22, 2001 of the Superintendent of Taxes, Damra check-post, Shrirampur, Assam as well as the order dated September 12, 2008 passed by the Additional Commissioner of Taxes, Assam sustaining the same. By the aforementioned assessment, the petitioner has been saddled with a tax liability of Rs. 15,89,419 realizable under the Assam General Sales Tax Act, 1993 (hereinafter for short referred to as, the Act ). I have heard Mr. G.K. Joshi, learned Senior Counsel for the petitioner and Mr. D. Saikia, learned Standing Counsel for the Revenue Department, Government of Assam. As final argument has been advanced on behalf of the parties at the motion stage based on the materials available on record, this petition is being disposed of hereby. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 46(15)(d) of the Act. The said revenue authority however did not consider the said documents and rendered its assessment under section l7(6) of the Act raising a demand of Rs. 15,89,419 computed on the basis of the value of the Maruti vehicles covered by the connected 11 transit passes amounting to Rs. 1,20,41,063. Being aggrieved, the petitioner filed a revision petition before the Commissioner of Taxes on April 30, 2001 and on a summary rejection thereof, an appeal was filed before the Board of Revenue, Assam which remanded the matter to the said revisional authority for a fresh disposal. By the impugned order dated September 12, 2008, the aforementioned assessment has been sustained. Mr. Joshi has argued that the presumption envisaged in section 46(15)(d) of the Act being obviously rebuttable in nature and the petitioner having produced reliable and dependable evidence to neuter the same, the impugned assessment of the Superintendent of Taxes, Assam and as well as the decision of the revisional authority are grossly illegal and are liable to be interfered with. The learned senior counsel has urged that the documents furnished to the concerned revenue authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the petitioner thereat within the period prescribed together with the endorsement of the concerned revenue authority of the exit check-post. The presumption ordained by the statute in section 46(15)(d) on such failure was thus available against the petitioner. In that eventuality, the assessing officer, if satisfied that such omission or failure had been without any reasonable cause could validly impose upon the petitioner after affording reasonable opportunity to it, tax on the goods involved as prescribed by the Act together with penalty thereon as stipulated. That this legal presumption is rebuttable had been propounded by the apex court in Sodhi Transport Co. [1986] 62 STC 381 while analysing section 28B of the Uttar Pradesh Sales Tax Act, 1948 which in substance is in pari materia with section 46(15)(d) of the Assam General Sales Tax Act, 1993. There Lordships enunciated that the statutory provision involved created a rebuttable presumption as regards the proof of a set of circumstances which would make a transaction liable to tax with the object of preventing evasion thereof, but could not be considered as conferring on the authority concerned, the power to levy a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les had been assessed under the Mizoram sales tax enactment for the period April 1, 2000 to December 31, 2000. Whereas, the document at Sl. No. 1 refers to 10 vehicles with registration in the State of Nagaland associating those with the consignments involved, the affidavit seeks to demonstrate that these vehicles were trucks carrying the new Maruti vehicles. None of these two documents, however refers to the number of new Maruti vehicles being transported by these trucks as claimed. Moreover, the affidavit omits to mention the particulars of one consignment. The certificate issued by the Superintendent of Taxes, Aizwal, North Zone, however while referring to all the 10 transit passes and the same trucks mentions about the number of new Maruti vehicles being ferried thereby. Both the affidavit and the certificate of the taxing authority of Mizoram however indicate sale of the new Maruti vehicles in that State (Mizoram), for which tax had been assessed for the relevant period under the local enactment. Noticeably, the assessing authority in its order dated March 22, 2001 had referred to 11 transit passes without the endorsement of the revenue authority at the exit check-post o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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