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TMI Blog2024 (5) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Sales Tax Appellate Tribunal (in short, the STAT), Andhra Pradesh, Hyderabad, T.A. No. 327 of 2002 vide order dated 09.04.2018, with the modification that the petitioner has been levied three times, penalty of the tax due, as first detection, instead of 5 times. 4. The petitioner is a registered dealer under the provisions of AP GST Act, 1957 and Central Sales Tax Act, 1956 (in short, CST Act, 1956), respectively carrying on the business in manufacture and sale of polythene bags. During the assessment year 1995-96, the petitioner reported gross turnover of Rs. 28,62,770/- through A2 returns. The Commercial Tax Officer, Madanapelli (in short, the Assessing Authority) issued notices for production of books for the purpose of assessment to which the petitioner did not respond. The business premises of the petitioner was inspected by the Regional Vigilance and Enforcement Officer (RVEO), Kurnool on 05.11.1996. During the course of such inspection, the purchase bills produced by the petitioner for the year 1995-96, towards the secondary transactions of polythene bags from M/s. Modi Plastic Industries, Hyderabad and M/s. Sundar Plastics, Hyderabad, disclosed certain bills for ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued along with the notice for assessment. The order of the Appellate Deputy Commissioner was, however, set aside by the Joint Commissioner (CT) Legal vide CC. Ts. Ref. No. LIII(3)/1370/98, dated 13.02.2002 restoring the order of penalty of the Assessing Authority (CT). The STAT partly allowed the appeal of the petitioner and dismissed it partly. It held that the penalty was liable to be levied, but it being a case of first detection, penalty of 5 times of the tax due, was impermissible in law, which was reduced to 3 times of the tax due. Submission of the learned counsel for the petitioner:- 8. Learned counsel for the petitioner submitted that the penalty under Section 7-A(2) cannot be levied for mere possession of the bills alleged to be false without production thereof before the Assessing Authority. He submitted that the recovery of purchase bills at the time of the inspection by the Regional Vigilance and Enforcement Officer, Kurnool would not attract Section 7-A(2). He submitted that the petitioner did not claim any exemption. He also submitted that the petitioner did not produce false bills for claiming any exemption. 9. Learned counsel for the petitioner placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Sales Tax Act, 1957 reads as under:- "7-A. Burden of proof and liability of the dealer to pay tax and penalty:- (1) In the case of an assessment made under sub-section (2) of Section 5, Section 6 or the notification issued under Section 9, the burden of proving that any sale or purchase effected by a dealer is not liable to any tax or is liable to be taxed at a reduced rate shall lie on the dealer. (1-A) Notwithstanding anything contained in this Act, or in any other law, a dealer in any of the goods liable to tax in respect of the sale or the purchase in the State shall be deemed to be the seller or purchaser, as the case may be of such goods and shall be liable to pay tax accordingly on his turnover of sales or purchases relating to such goods, unless he proves to the satisfaction of the assessing authority that the goods sold or purchased as the case may be, have already suffered tax under this Act. (2) Where a dealer issues or produces a false bill, voucher, declaration, certificate or other document with a view to support or make any claim that a transaction of sale or purchase effected by him or any other dealer, is not liable to be taxed or is liable to be taxed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and the invoices issued by M/s. Sundar Plastics and Modi Plastic Industries, Hyderabad are not supported by the following documents." At the same page, the order further mentions as under:- (b) "In view of the above evidence, it is very clear that the dealers produced false bills to the department and indulged clandestine trade of transaction to evade the legitimate tax due to the Government." (iii) Similarly the order of penalty dated 02.12.1997 (at page 11 of the paper book) also mentions as follows:- "It is therefore clear evidence that M/s. Balaji Industries, Vayalpad produced fraudulent bills in the department in order to evade the legitimate tax due to the Government." A perusal of the order of the Appellate Deputy Commissioner, (Page No. 12 of the paper book) in which the grounds of appeal have been reproduced, does not show that the petitioner raised any such ground that he did not produce any bill etc., of the nature contemplated by sub-section (2) of Section 7-A. 18. In view of what we have noted above, from the record, we cannot accept the submission of the learned counsel for the petitioner that the petitioner did not produce any false bill, or did not cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consigned to consignees at New Delhi and Bombay; and they were stocked at Itchapuram and Vijayawada godowns belonging to BARL (transporter) allegedly for being transshipped to destinations. ......" 26. Recently in the State of A.P., rep. by the State Representative before S.T.A.T, Hyderabad vs. M/s. Jai Sree Enterprises, Vijayawada T.R.C. Nos. 210, 211 & 212 of 2002, decided on 08.05.2024, this Court has held that the revision does not lie on a question of fact. It lies only if the question of law has either not been decided or has been erroneously decided. So there is no dispute on the proposition that under Section 22 of the AP GST Act, revision would not lie on a question of fact. Paras 57 to 59 of the the State of A.P., (supra) reads as under:- "57. In view of clear language of Section 22(1) of APGST Act and the law as laid down in the aforesaid judgment, there cannot be any dispute on the proposition of law that the power of revision is open to be exercised by this court only when the Appellate Tribunal has either erroneously decided a Question of Law or has failed to decide any Question of Law. 58. 'Erroneous' has been defined in Black Law Dictionary as under: "Incorre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held as follows in Para 5:- "5. A reading of sub-section (2) shows that action thereunder has to be taken by the assessing authority "on detecting such issue or production". In other words, the sub-section itself specifies the starting point for the action thereunder. It is indeed a case of stating the obvious. There can be no question of taking proceedings for levying penalty for issuing or producing a false bill, voucher, etc., unless it is first found that such a thing has happened. The context thus excludes the importation of any other theory of limitation by analogy, inference, or reference. While we agree that proceedings under the said sub-section should be taken soon after, or within a reasonable period of such detection - the proceedings under section 7-A(2) being penalty proceedings, it is but proper that they should be taken without unreasonable delay - we find no room, in view of the language employed in sub-section (2), to import the theory propounded by Mr. Srinivasa Murthy. The analogy of section 14 has no application at all. Section 14 provides a period of limitation for reopening an assessment and for levying penalties, but that is for its own purposes. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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