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TMI Blog2017 (11) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... eded to levy penalty upon the assessee. Section 28B only puts in place a rebuttable presumption - in case an assessee is able to produce evidence which tends to indicate and establish that what is presumed is not correct, the purpose of the rebuttable presumption is over and the burden then shifts upon the Department. Once the burden shifts, it is in light of the evidence which may be led by the respective parties that the issue must be decided - This aspect of the matter has clearly been ignored by both the assessing authority as well as the Tribunal which appears to have proceeded on the misconceived assumption that the entire onus lay or stood placed upon the assessee. Once the receipt of the goods at the Delhi office was established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the receipt of the goods at the Delhi office was not disputed. The respondents have sought to draw adverse inference from the circumstance that although the challan was dated 20 July 1992, the goods were received by the Delhi office only on 23 July 1992. Based on this singular circumstance the respondents have proceeded to levy penalty upon the assessee. It becomes relevant to note here that Section 28B only puts in place a rebuttable presumption. This was so held by the Supreme Court in the matter of Sodhi Transport Co. Vs. State of U.P. (1986) 2 SCC 486 In view thereof and in case an assessee is able to produce evidence which tends to indicate and establish that what is presumed is not correct, the purpose of the rebuttable pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the State. The transporter concerned is not shut out from showing by producing reliable evidence that the goods have not been actually sold inside the State. It is still open to him to establish that the goods had been disposed of in a different way. He may establish that the goods have been delivered to some other person under a transaction which is not a sale, they have been consumed inside the State or have been re despatched outside the State without effecting a sale within the State etc. It is only where the presumption is not successfully rebutted the authorities concerned are required to rely upon the rule of presumption in Section 28-B of the Act. It is, therefore, not correct to say that a transaction which is proved to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asthan). Even it is assumed for a moment that the opposite party has not surrendered the transit pass on the exit check post the presumption raised under Section 28-B is reputable as held by the Hon'ble Supreme Court in the case of Sodhi Transport Company vs. State of U.P. and others reported in 1986 UPTC- 721. The Tribunal has recorded the finding that the goods in question has been delivered to the purchasing party at Bikaner in the State of Rajasthan. Thus, the presumption under Section 28-B has been rebutted. In this view of the matter, no penalty under Section 15-A(1)(q) can be imposed. 2. Vijay Lal Gupta, Rewa (M.P.) vs. Commissioner of Trade Tax, U.P. Lucknow 2007 NTN (Vol. 32) 44 . Learned Counsel for the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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