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TMI Blog2017 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assam on 5.8.2005, it will not be logical to hold that the presumption is conclusive against the petitioner. In so far as the two missing trucks are concerned, if in fact, the driver or the in-charge of the vehicles were responsible for misappropriating the loaded sheet rubber, carried in the two missing trucks, to burden the transporter with tax liability in such situation will be an unwarranted exercise - on account of the misdeeds of the driver and his cronies, the transporter may be wrongly subjected to tax, whereas the target of the authority should be the persons, who are actually responsible - the Assessing Officer is at liberty to re-do the exercise in respect of the sheet rubber, carried by the two trucks. Petition allowed. - Revision Petition No. 19/2014 - - - Dated:- 19-1-2017 - Hrishikesh Roy And Nelson Sailo, JJ. For the Petitioner: Ms. M. Hazarika, Sr. Advocate. Mr. S.K. Agarwal, Advocate. Advocates For the Respondents: Mr. B. Choudhury, Standing Counsel, Finance Taxation Department JUDGMENT ( Hrishikesh Roy, J ). Heard Ms. M. Hazarika, the learned senior counsel appearing for the petitioner. Also heard Mr. B. Choudhury, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR was lodged on 10.11.2005 for the missing goods and trucks, leading to registration of East Agartala P.S. Case No.164/2005, under Section 407/420/468/379/102(B) of the IPC. Accordingly, it was submitted that the transporter be given due opportunity the rebut the legal presumption, on evasion of tax. 5. The Commissioner of Taxes, Assam under his order of 9.2.2010 (Annexure-III) set aside the earlier order of assessment made on 31.12.2007 and directed the Superintendent of Taxes, Churaibari to re-do the exercise, after providing due opportunity to the transporter to rebut the legal presumption. 6. Following the order passed by the Revisional Authority, the Assessing Officer noted that the transporter could produce the certificates from the exit check post, for eight truck loads but found that they failed to produce such supporting document for the commodities in the remaining 5 other trucks and accordingly, for the goods carried on these five trucks, assessment to tax, interest and penalty under the VAT Act, was made by the Assessing Officer, under his second assessment order dated 18.3.2010 (Annexure-IV). 7. The transporter paid the assessed tax, interest and penalty for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise has to be performed with responsibility with due regard to the rebuttable nature of the legal presumption, to be drawn against the transporter or the truck driver. 10.2 She submits that the petitioner is not a dealer under Section 2(15) of the VAT Act and is not covered by normal levy of tax, under Section 7 of the VAT Act. But when such non-dealer is assessed to tax under the presumptive Section 76(6) for their failure to produce the T.P.s with the endorsement to the exit check gate, the tax liability can be also on the driver or the person in-charge of the goods vehicle and not necessarily, on the transporter of the goods. Therefore the senior counsel argues that the Assessing Authority should have applied his mind to the case projected by the transporter, before they were made liable to the tax burden, interest and penalty, under the presumptive provision of the VAT Act. 10.3 The petitioner submits that after conclusion of the investigation of the East Agartala P.S. Case No.164/2005, for the two missing trucks and the commodities, charge sheet was filed against 7 accused including the drivers of the trucks. The senior counsel reads the charge sheet to project that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption is rebutted with appropriate material. 12. As earlier noted, the levy of tax here is not under Section 7 of the VAT Act, which is applicable for registered dealers only. But those who bring in goods into Assam but fail to produce appropriate endorsement from the exit check gate to show that goods have left Assam boundary, can be subjected to tax under the presumptive provision of Section 76(6) of the VAT Act. But in Sodhi Transport Co. vs. State of U.P. reported in (1986) 2 SCC 486, it is clarified by the Supreme Court on the distinction between actual facts and presumption, in the following words: .. 14. 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, and when that party has produced evidence fairly and reasonably tending to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be made liable to tax under the presumptive clause of the VAT Act in accordance with law. 15. When the transporter claim that they have no connection whatsoever with the gunny bags and the truck No.AP-16/U 6287, it is natural for them to contend that they are not in a position to produce any documents pertaining to this truck, to rebut the legal presumption. However if the petitioner s name is actually incorporated in the T.P. at the entry check gate for the gunny bags, valued at ₹ 28,83,355/-, a mistaken entry in the T.P. in the rush of things, cannot entirely be ruled out. But the supporting documents, on the basis of which T.P. was issued for the gunny bags, must have been produced by the driver at the entry check gate at Churaibari. Hence if copies of these documents, which will reflect the date on which the goods commenced its journey from Tripura, are made available to the transporter, they may in turn, produce their business records to rebut the legal presumption, drawn against them. The opportunity that was required to be given to the transporter on account of the order passed by the Commissioner of Taxes on 9.2.2010, must be an effective opportunity and not just ..... X X X X Extracts X X X X X X X X Extracts X X X X
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