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TMI Blog2018 (7) TMI 1704X X X X Extracts X X X X X X X X Extracts X X X X ..... e Intelligence Officer to summon the artisan. The assessee also did not produce the stock register and specifically point out the entry made to absolve himself from the liability. The burden stands undischarged - the Tribunal erred insofar as casting the burden on the Intelligence Officer; contrary to the statutory prescription. Whether the Tribunal was correct in directing the penalty levied on sale of fixed assets to be deleted on the ground that the sale was reflected in the books of accounts, especially when under the KVAT Act there is no regular assessment contemplated wherein the Assessing Officer is mandated to look into the books of accounts before regular assessment? - Held that:- The burden to prove that the artisan had refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law arising in the above revision are re-framed as follows:- (i) Whether the Tribunal was correct in deleting the addition made on the strength of a cancelled issue voucher of gold, on the ground that the Intelligence Officer has not summoned the goldsmith and also not verified the stock register; when burden of proving that there is no attempt to evade tax is squarely on the assessee as statutorily prescribed under Section 67 of the Kerala Value Added Tax Act, 2003 [for brevity KVAT Act ]? (ii) Whether the Tribunal was correct in directing the penalty levied on sale of fixed assets to be deleted on the ground that the sale was reflected in the books of accounts, especially when under the KVAT Act there is no regular assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the artisan, along with gold, the goods were not handed over since the gold smith expressed an inconvenience; upon which the voucher stood cancelled and kept in the records of the assessee. The Intelligence Officer, however, found that the presence of the cancelled voucher indicates a suppression of the quantity of gold so transferred and the ornaments received back. The Tribunal cancelled the same on the ground that the artisan was not summoned and the stock register was not verified. 5. In this context, we have to notice Section 67 of the KVAT Act, which, by the Explanation, casts the burden of proof on the person who is alleged to have committed an offence leading to evasion of tax; which reads as under: Explanation .- The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of accounts and relied on a decision of this Court in Kollanur Agencies v. Assistant Commissioner [(1991) 80 STC 177] and that of the Hon'ble Supreme Court in Sree Krishna Electricals v. State of T.N. [(2009) 23 VST 249 (SC)]. In both the aforesaid cases, the assessee had disclosed the transaction in the books of accounts; but, however, not paid tax. The Court found that when there is disclosure in the books of accounts, there could be no penalty imposed; obviously since there could be no contumacious conduct discernible from the action of the assessee. 9. We notice the decision of the Hon'ble Supreme Court in Sree Krishna Electricals, wherein the assessee was selling wet grinders. In the return, the assessee did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in imposition of penalty without reference to whether there has been disclosure made in the books of accounts, has to be accepted. 11. On the question raised with respect to the sale of fixed assets, the assessee had filed an incorrect return and had not returned the sale of fixed assets nor paid tax in accordance with that. Even after issuance of notice on penalty, the assessee filed an annual return without showing the aforesaid liability. A revision of the annual return was carried out and only then the liability satisfied. 12. We hence answer the questions of law framed, in favour of the revenue and against the assessee. On the issue of cancellation of voucher, we are of the opinion that the penalty as levied at 170% by the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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