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TMI Blog2018 (6) TMI 1652X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of which penalty is proposed, must be clearly established from the materials on record. There is absolutely no scope for any inference in such proceedings and the facts are to be established by positive proof. Needless to say, mere suspicion of the facts is not enough. There is no presumption in law that website information relating to merchandise are correct. It is common knowledge that website information, especially that of merchandise, may or may not be correct. Indian Courts had occasion to consider the issue whether print outs of the judgments taken from websites can be relied on and the stand taken is that the same can be relied on, if its authenticity and reliability are not doubted. The pretensions of a manufacturer as regards the products manufactured by them would not bind even the manufacturer, in the absence of fraud, in the light of the principle caveat emptor - there cannot be penal proceedings at all on the presumption that the website information as regards merchandise are correct. The impugned order, in the circumstances, is one issued without jurisdiction. Petition allowed. - WP(C).No. 40400 of 2017 - - - Dated:- 8-6-2018 - P.B.Suresh Kumar, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from them under Section 67(1) of the Act. Ext.P7 is the reply sent by the petitioner to Ext.P6(1) notice on 10.12.2014. The stand taken by the petitioner in the reply was that they have not made any false declaration and that the declaration made by them as regards the output production capacity of the machine is correct. It is also stated by the petitioner in Ext.P7 reply that the output production capacity of the machine was never tested by the first respondent. It is also stated by the petitioner in Ext.P7 that in any event, if the first respondent intends to proceed with the matter further, an opportunity shall be given to them to establish the output production capacity of the machine by conducting test check. 3. The first respondent did not pursue further the proceedings pursuant to Ext.P6(1) notice for about a year. By that time, it is stated that the machine became obsolete. The petitioner therefore replaced the same with another machine. Ext.P10 is the request made by them on 07.09.2015 to their assessing authority thereafter for fixing their tax liability for the year 2015-16. 4. After about seven months, on 26.04.2016, the new incumbent in the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) has submitted an untrue, or, incorrect return; or (e) has made any bogus claim of input tax credit, special rebate or refund; or (f) has continued the business during the period of suspension of registration; or (g) has failed to return the unused statutory Forms and Declarations under this Act after the concellation or suspension of the registration; or (h) has not stopped any vehicle or vessel when required to do so; or (i) has failed to comply with all or any of the terms of any notice or summons issued to him by or under the provisions of this Act or the rules made thereunder; or (j) has acted in contravention of any of the provisions of this Act or any rule made thereunder, for the contravention of which no express provision for payment of penalty or for punishment is made by this Act; or (k) has abetted the commission of the above offences; or (l) has abetted or induced in any manner another person to make and deliver any return or an account or a statement or declaration under this Act or rules made thereunder, which is false and which he either knows to be false or does not believe to be true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Division Bench in U.K.Monu Timbers v. State of Kerala [2012 (3) KHC 311]. The said case was also one dealing with the scope of the proceedings under Section 67 of the Act. Paragraph 12 of the said judgment reads thus : 12. Section 67 does not confer power to make a reasonable estimate. The suppression or omission must be clearly disclosed from the materials available and there should be evidence of the amounts sought to be suppressed from the turnover. In cases where the same is not discernible, the only option is to make an order of imposition of fine not exceeding ₹ 10,000/-. Any suppression detected or rather any file generated on a crime so detected and penalised necessarily gives the assessing authority the power to make estimations to compensate the State against probable omissions and suppressions. Such exercise, as is mandated by the statute, has to be regulated by the best judgment of the individual officer which definitely is subject to the principles of reasonableness, proportionality and of course natural justice. Such estimation on best judgment would definitely have to be done with due notice and after affording a personal hearing. Such estimat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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