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TMI Blog2010 (9) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the certificates issued by the purchasing dealers stating that they had not claimed any set-off in respect of the purchase from the petitioners during the relevant period either at the time of filing return of commercial tax or during the assessment proceedings. It is not in dispute that this additional material could be submitted by the petitioners before the revisional authority.This material was produced by the petitioners in rebuttal of presumption about facilitation of evasion of tax, therefore, it was required to be considered while imposing or affirming the penalty under section 43(6) on the presumption of evasion of tax. the impugned order passed by the revisional authority is not sustainable in law and the same is accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seal in the invoice in terms of section 43(3) read with rule 66(2) of the Madhya Pradesh Commercial Act, 1994 and Rules, 1995, therefore, the penalty under section 43(6) of the Act was levied on the petitioners. The petitioners preferred a revision before the Additional Commissioner of Commercial Taxes, which has been rejected by the impugned order. Aggrieved with the same, the present writ petition has been filed. Though the learned counsel for the petitioners has challenged the impugned revisional order on several grounds, but during the course of the arguments, he pressed the ground that the presumption under section 43(6) of the Act is a rebuttable presumption and the material, which was produced by the petitioners before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in section 43(3) of the Act and he has sold goods specified in Schedule II manufactured by the exempted unit, but while issuing the invoice to the purchasing registered dealers he has not affixed the seal as required by rule 66(2), therefore, a presumption has been raised under section 43(6) that he has facilitated the evasion of tax on sale of such goods. The presumption under section 43(6) is a rebuttable presumption and the said sub-section specifically mentioned unless the contrary is proved by him therefore, in terms of the section, the dealer concerned, is required to be given adequate opportunity to prove that he has not facilitated the evasion of tax. The Supreme Court in the matter of Sodhi Transport Co. v. State of U.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 7. In our opinion it could not be the intention of the Legislature that an accidental omission or non-furnishing of the statement for a good and valid reason must necessarily lead to the presumption that the registered dealer had the intention of facilitating the evasion of entry tax. . . . . . 12. In our opinion Mr. Sanghi is right in submitting that section 7 should be read as containing a rebuttable presumption. This would mean that it will be open to the registered dealer to satisfy the authorities concerned that the non-submission of the statement under sub-sections (1) and (2) of section 7 was not with the intention to facilitate the evasion of the entry tax. In other words, sub-section (5) of section 7 places the burden o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, no penalty could be levied on the petitioner for not mentioning in the bills under which the coal was sold to the registered dealers that the goods were local goods in relation to a particular local area where they were produced by the petitioner and that no entry tax had been paid on such goods. . . In view of the aforesaid judgments and looking to the language of section 43(6) of the Act, it is clear that the presumption contained under section 43(6) is a rebuttable presumption. Therefore, the authorities are required to give a reasonable opportunity to the assessee to rebutt the presumption before levying the penalty and the material which is produced by the assessee in rebuttal is required to be looked into. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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