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TMI Blog2010 (4) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... Department and the same has to be adjudicated upon after taking all other materials and supporting documents which are furnished by the assessee. Under the circumstances, we are of the view that the order passed by the respondent herein dated August 12, 2008 is not in accordance with law and accordingly, the same is set aside. Consequently, the orders passed by the assessing authority is upheld. The appeal is accordingly allowed. - 14 of 2008 - - - Dated:- 16-4-2010 - MANJUNATH K.L. AND NAGARATHNA B.V. , JJ. The judgment of the court was delivered by K.L. MANJUNATH J. The assessee has filed this appeal by challenging the order dated August 12, 2008 passed by the Additional Commissioner of Commercial Taxes by exercising the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the equipment which had been hired by the appellant and hence the said transaction could not be categorised as the transfer of right to use goods. Thereafter notice under section 22A of the KST Act proposing to revise the said order was issued by the Additional Commissioner of Commercial Taxes, the respondent herein, on the ground that the revising authority had erroneously allowed exemption on the hire charges collected by the appellant on DG sets and other electrical equipment. By exercising the power under section 22A(1) of the Act, the respondent-authority held that the entire turnover of the appellant relating to hiring of DG sets and other electrical equipment for the assessment years 1996-97 to 2000-01 was for transfer of righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions and to verify the veracity of the statements made by the dealer. In the first instance, the clients of the dealer were visited with a view to get the first hand information on the transactions between themselves and the dealer. Some of the clients visited were, M/s. Casmo Diesel, West of Cord Road, Bangalore, M/s. Arjun Motors Pvt. Ltd., Queens Road, Bangalore and M/s. St. Patrick's Church, 15-K, Brigade Road, Bangalore. Transactions of each one of the above with reference to the dealer were verified and statements were drawn. On verification it was noticed that for specific purposes they have taken D.G. sets on hire and the D.G. sets were managed by the dealer's representatives. The above clients gave written stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. It is subsequently, the notice has been issued by the respondent herein so as to take up the suo motu revision of the order passed by the assessing authority as well as of the Joint Commissioner. The respondent herein had thus recorded its finding as follows: After the objections were received and visiting some of the customers/clients of the respondent, the assessing authority came to an opinion that the proposal made by him to determine the tax liability under section 5C of the KST Act, 1957 does not survive. The letters he has collected inform that the equipments were maintained and operated by the technicians of the assessee. After the requirements are fulfilled, they are dismanded and taken back by the assessee. These letters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was the actual position without taking into consideration that the response given to the proposition notice by the assessee and the supporting documents. The proposition notice is based on the prima facie finding which the Department would have been depending on the material collected by it on inspection and it is only after taking into consideration the reply to the said notice and the supporting material produced by the assessee can come to a conclusion on the issues raised merely because the response of the assessee and the evidence which are produced by the assessee in support of the case was contrary to what is stated in the proposition notice. Hence, it cannot be held that the consideration made by the assessing authority on all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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