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TMI Blog2017 (4) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... O.T. Rev. No. 158 of 2015 without any application of mind. For that reason, the order passed by the Tribunal allowing T.A. (VAT) No. 1506 of 2013, which is the subject matter of O.T. Rev. No. 158 of 2013 is to be set aside. TA (VAT) No. 1506 of 2013 will stand restored to the file of the Tribunal and the Tribunal shall re-consider the matter with notice to both sides and pass appropriate orders in the matter Petition allowed by way of remand. - O.T. Rev. Nos. 155, 156, 157 & 158 of 2015 - - - Dated:- 10-8-2016 - Antony Dominic and Dama Seshadri Naidu, JJ. N. Muraleedharan Nair for the petitioner Mohammed Rafiq, Government Pleader, for the respondent JUDGMENT These revisions are filed by the assessee challenging the common order passed by the Kerala Value Added Tax Additional Appellate Tribunal, Palakkad in TA (VAT) Nos. 1099, 1505, 1100 and 1506 of 2013. By the impugned common order, the Tribunal allowed the appeals filed by the Revenue and dismissed the appeals filed by the assessee and thus restored the order of penalty passed by the Intelligence Officer in exercise of his powers under Section 67 of the KVAT Act. 2. The assessee is a dealer engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. The appeals were heard together and were disposed of by Annexure B orders. As per this order, penalty for the assessment years 2006- 2007 and 2007-2008 was reduced to ₹ 4,59,446 and ₹ 66,60,222 respectively. 4. Impugning the first appellate authority's order to the extent it is against the assessee, it filed T.A. (VAT) Nos. 1099 and 1100 of 2013 and the Revenue also challenged the orders to the extent it is against it in T.A. (VAT) Nos. 1505 and 1506 of 2013 . By Annexure C order, the Tribunal allowed the appeals filed by the Revenue and dismissed the appeals filed by the assessee and thus restored the orders passed by the Intelligence Officer. It in these circumstances the assessee has filed these revision petitions. 5. Before we enter into the merits of the rival contentions, we may, at the outset, state that from the concluding part of the order passed by the Tribunal in KVATA Nos. 1517 and 1518 of 2009 remitting the matter to the Intelligence Officer for passing fresh orders, it is clear that the Tribunal has carefully outlined the scope of enquiry by the Intelligence Officer. This is evident from the Tribunal's order requiring the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders that computer prints purported to be accounts of appellant were produced for enquiry and that too after seeking adjournment for a fortnight. Observations of the Enquiry Officer with regard to computer printouts of accounts were to the effect that those appeared to him as cooked up documents prepared after a lapse of two years from the date of the transactions in question. It is pertinent to note that proviso to Section 40 which permitted maintenance of electronic accounts was introduced vide amendment brought by Act 21 of 2008 only with effect from 01/04/2008. Appellant was bound to maintain written accounts as per Section 40 Rule 58 of Rules until then. It is obvious that no accounts were being maintained as per law or if being so maintained not produced before the authorities. What were produced were computer prints of purported accounts which obviously did not have to satisfy the stringent conditions laid down in Circular 23/2008 dated 16.05.2008 for their acceptance as the circular was after the amendment. Hence those were rightly looked upon with distrust and discarded by the Enquiry Officer. Any changes could be made and manipulations done as the computer was with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he would entrust his business to a half-baked employee who does not know even know the fundamentals of accounting. These contentions are not at all sustainable and are only to be repelled. The requirement of mandatorily complying with the specifications of the aforesaid statutory provisions has been highlighted by this Court in the judgment in Mohammed Haji M. v. State of Kerala[ 2012 KHC 442]. From the aforesaid findings, it is obvious that the assessee has not produced documents as directed by the Tribunal and has failed to prove its entitlement for input tax credit. Having regard to the limited scope of the enquiry after remand, in the light of the aforesaid findings of the Tribunal, the case should have ended there. 7. Be that as it may, insofar as the assessment year 2006-2007 is concerned, the first issue that was raised before us was with respect to the levy of penalty on the quantity variation of 3370MT of coal. In Annexure A order, it has been found that the quantity of 3770 MT of coal has been accounted by the assessee in April, 2007, and that there is no entry of the said quantity of 3770MT in the books of accounts of the dealer for the year 2007-2008. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Malabar Cements Ltd. to substantiate his contention. According to him, though the Malabar Cements had received the consignment on 01.04.2007, bill was raised only on 18.04.2007. This, according to the learned counsel, cannot be construed as a case of suppression as found by the Tribunal. Having considered the contention now urged by the learned counsel, we confess our inability to accept the same primarily for the reason that the contention now urged before us is contrary to the contentions raised by the assessee themselves before the first appellate authority. 9. From Annexure B order of the first appellate authority, we find that it has recorded the submission of the authorised representative of the assessee that the coal in question was imported at Cochin Port. If that be so, the contention now raised that the coal was imported at Chennai is a contradictory claim. Apart from that, even in the RR receipt now relied on by the learned counsel, we find that the assessee's name does not figure anywhere. Therefore, we cannot place reliance entirely on the RR receipt or invoices allegedly issued by the Malabar Cements Ltd. and upset the findings of fact arrived at by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the year 2007-08. The findings of the Intelligence Officer is totally incorrect for the following reasons. The authorised Representative appearing for the appellant has produced the copies of the duplicate certified bills and accounts, invoices for both the years. Total quantity of coal sold to MCL As per invoice 12/18.04.2007 : 3770.000 MT Add the quantity of goods as per invoice 4 to 7 : 14467.237 Total 18237.237 MT Add the inter-state sale by Head office : 3705.000 MT Total 21942.237 MT Less transit loss claimed as per records : 374.180 MT Balance as per accounts : 21568.060 MT From the above analysis it is evident that the appellant had not suppressed any purchase as alleged by the Intelligence Officer. From the above analysis it is evident that the goods purchased from IMMPL as per invoice Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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