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TMI Blog2019 (5) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... o maintain register of visit for audit purposes. The learned Authorised Representative for Revenue represented that though two letters were sent to the department no reply has been received so far. It has to be then concluded that the department has no documents to establish their contention that they have visited the premises on 26.11.2012. More so, in the reply to the show-cause notice itself, the appellant has taken the plea that there has been no visit of audit party on 26.11.2012. It is also submitted that the father of the appellant had passed away on 08.11.2012 and the office was closed during the said period. The department then has to establish that they had visited the premises on 26.11.2012. A letter merely requesting for furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Ms. S. Sridevi submitted that the department vide show-cause notice, dated 29.01.2014 proposed to reject the VCES declaration filed based on the basis of conditions as per provisions of Sec 106(2) of Finance Act. 2.1 The contention of the department is that on 03.09.2012, the department sent a letter to the appellants intimating the intention of the department to conduct audit in appellant s Unit during the month of September 2012, therefore, directed the appellants to keep all the records ready in order to facilitate the audit. Though appellants received intimation from the department about the audit to be conducted at their premises, departmental officers did not come for inspection or visit their premises to conduct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 The appellant submits that no such audit took place on 26.11.2012. The lower adjudicating authority and the lower appellate authority relied upon the letter, dated 23.01.2014 supposed to have been issued by the Additional Commissioner vide C.No.III/10/232/2012 IA (ST), dated 23.01.2014. When the very question of visit of officers for audit at the premises of the appellants is denied by the appellants, the onus is on the department to prove that audit was really conducted at the Unit by adducing sufficient evidence. 2.5 Even after repeated denial by the appellants that no such audit of Unit has taken place by the authorities , the department never bothered to substantiate such allegation with material evidence. Neither, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the appeal is to be allowed. 3. The learned Authorised Representative for the Revenue Shri L. Nandakumar, AC (AR) supported the findings in the impugned order. He referred to section 106(2) of the Finance Act, 2013 (Amendment) and submitted that as per clause (b), when an audit is initiated or when an investigation or audit is pending as on 01.03.2013 the VCES application cannot be accepted. In the present case, the department had issued a letter dated 03.09.2012 to the appellant calling for documents. Later, the department had visited the premises on 26.11.2012. Since the audit party had visited the premises on 26.11.2012, there is initiation of audit and, therefore, VCES has been rightly rejected. 4. Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clarification 19 In terms of section 106 (2) (b), if a declaration made by a person against whom an audit has been initiated and where such audit is pending, then the designated authority shall by an order and for reasons to be recorded in writing, reject such declaration. As the audit process may involve several stages, it may be indicated as to what event would constitute.- (i) Initiation of audit; and (ii) Culmination of audit. Initiation of audit: For the purposes of VCES, the date of the visit of auditors to the Unit of the taxpayer would be taken as the date of initiation of audit. A register is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made by audit party on 26.11.2012. The learned Authorised Representative for Revenue represented that though two letters were sent to the department no reply has been received so far. It has to be then concluded that the department has no documents to establish their contention that they have visited the premises on 26.11.2012. More so, in the reply to the show-cause notice itself, the appellant has taken the plea that there has been no visit of audit party on 26.11.2012. It is also submitted that the father of the appellant had passed away on 08.11.2012 and the office was closed during the said period. The department then has to establish that they had visited the premises on 26.11.2012. A letter merely requesting for furnishing of docum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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