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TMI Blog2024 (3) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial Tax Tribunal as well as the 1st Appellate Authority was legally justified in dismissing the appeal filed by the department only on the basis of invoices and bank transactions inasmuch as the transactions have not been proved as a bonafide and genuine transactions otherwise establishing the actual transportation of goods?" 2. Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in allowing the claim of I.T.C. especially when the finding of fact has been recorded against the dealer and the benefit has been allowed only on the basis of tax invoices and bank transactions?" 2. The primary issue in the present writ petition is with regard to availment of Input Tax Credit (hereinafter refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden of proof that the ITC claim is correct is squarely upon the assessee who has to discharge the said burden. Merely because the dealer claiming such ITC claims that he is a bona fide purchaser is not enough and sufficient. The burden of proving the correctness of ITC remains upon the dealer claiming such ITC. Such a burden of proof cannot get shifted on the revenue. Mere production of the invoices or the payment made by cheques is not enough and cannot be said to be discharging the burden of proof cast under section 70 of the KVAT Act, 2003. The dealer claiming ITC has to prove beyond doubt the actual transaction which can be proved by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. Therefore, as observed hereinabove, for claiming ITC, genuineness of the transaction and actual physical movement of the goods are the sine qua non and the aforesaid can be proved only by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment particulars etc. The purchasing dealers have to prove the actual physical movement of the goods, alleged to have been purchased from the respective dealers. If the purchasing dealer/s fails/ fail to establish and prove the said important aspect of physical movement of the goods alleged to have been purchased by it/them from the concerned dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt by the learned counsel for the revisionist to indicate the contradictory stand taken by the Tribunal. It is to be noted that in paragraph 16 of the Tribunal's order the Tribunal has indicated that certain persons, who had sold the goods to the assessee were not entitled to issue tax invoice as they were following the compounding scheme. Furthermore, a few of the dealers' registration had been cancelled and in certain cases the dealers have not shown in the return any sale made to the present assessee. However, from perusal of paragraph 18 of the judgment of the Tribunal, it appears that the Tribunal taking note of the fact that these firms have not sold goods to the assessee went on to hold that since payment has been made via ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Pradesh Value Added Tax, 2008, and accordingly, the judgment of the Apex Court would squarely apply in the present case. In the aforesaid judgment, the Apex Court has further gone on to state that the dealer claiming the I.T.C. has to prove beyond doubt the actual transaction which can be proved by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment of particulars. The aforesaid information would be in addition to tax invoices, particulars of payment etc. 10. In the present case, counsel on behalf of the revisionist has submitted that the documents in relation to the transportation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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