High Court Karnataka High Court

Smt Geetha Bhat D/O Keshava Bhat vs The Additional Commissioner Of … on 29 September, 2010

Karnataka High Court
Smt Geetha Bhat D/O Keshava Bhat vs The Additional Commissioner Of … on 29 September, 2010
Author: Manjula Chellur K.Govindarajulu
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 29% DAY OF SEP1'EMBER;.2_'Q_1'O_

PRESENT

THE HONBLE MRS. JUSTICE1»A1\/LAl\iJIjl.lA All 

AND 
THE HONBLE MR. JUSTICE  LU
SALES TAX.APPEAL:..l\;Ef)lI2i.1 OR '20o97

BEI WEEN

Smt. Geetha,E*':ha-t S _, 

D/o Sri. KeS_ha'§92£ __Bl1at  _ V V
Suresh Bha:eeEo':np_ouRr;:    . '
Dongerakeri    '!

... APPELLANT

(By Sfi-..  K.  Sri. P. E. Umesh.
M/ S. Global LaW_Ii1c.»~iA'(fv0cateS)

AND

_ » Fhe A_ddiu7Qf1a_l Commissioner
'  C.§.Co:1j:=ne'i"cial_i.TaXes

     '

'Z0r1ie--IV, V Terige Bhavan
Ga.Ddhinag.ar

Bar1gal0re~560 009  RESPONDENT

T. K. Vedamurthy, HCGP)

This Appeal is filed “L1/S 24(1) of the KST Act

Against the Revision Order dated 21.10.2008 passed in

K o.

4

No.ZACw1/MNG/SMR~12/07~wO8. T.No.692/08-09 on
the file of the Acldl. Commissioner of Commercial Taxes,
Zone–I, Bangalore, revising and setting aside the appeal
order and restoring the orders of assessment and
penal.ty of the Check post authority and accordingly
concluding the revision proceedings.

This Appeal coming on for Admission”
Manjula Chellur J., delivered the following: ll ” ‘

On our direction, the’.__ le_arried*,_ Go’vei’nrnen_t.

Advocate placed before us”the__origin.al file’i3lAe1Ajtai.ni_ng

the assessment of sales tax 2002-

03 of M/ s. Vivek Pet’rol.Cc,.’ short ‘M/ s.

VivekvvPetro?}:’:and isjierused. The questions of

law raised are -as ‘ ~ ,

il”V’l-fllletirierl don

V .1’_) the facts and
‘ ‘__circ1l,1″mst..ances of the case the

V go’1″-‘:)__c_:ee(lings initiated against the
* under Sections 28–AA of the
‘ ftiarnataka Sales Tax Act, 1957 are void

ab initio in view of the fact that the
goods had become part of local stock of

the consignor. who is also a registered

iii)

DJ

dealer under the said Act, before they

were transported outside the State’?

Whether on the facts

circumstances of the
Respondent has committed an
ignoring the subrnission_”m§’f:’_’:p.fihietix
Appeiiant that the pr.ovisiotns4tof_1

28~AA of the Kar_nataI(a”Sa1escVTa;: it

1957′ are not app1ica.b1e tc._the

the present case-‘?’* –. it

Whether t ” and

ciren1nstE;nces:’V..: .Qf~~.i”_*..th’e case the

in rejecting the

” 4’ the Appellant that the

procceadi.ngs””..»s. ‘initiated against the

aApp_e11:ar1t under Section 28–AA of the
._Karnata’ka Sales T ax Act, 1957 is void»

:,”a:b:.i:ntio in View of Explanation to the

‘V T Section according to which hirer of

t * “the goods Vehicle is presumed to be its

owner and not the registered owner of

the Vehicle ‘?

andiirit

Whether on the facts and

circumstances of the case

1″

Respondent is right in hoiding

the purpose of Expianation to’VS:ectiron
28–AA of the Karnat-aka..SaIes ;’»\o’t,’_f,
1957, Consignor of the goods

considered as the “hir’e_r”” of _the’ ‘goods;

vehicle and thesaid word, is
applicable _to oriiy ‘t’ra.nsport’er Kivho
obtains goods. in case
he does not a. goods ‘?

v and

“Voirc’Lt;ri1stat1ees” the case the
_1RespoVnde–nt”~.i_s __}’1_1stified in drawing a

i « that the goods in question

have been inside the State for the

only. reason that the transit pass has

not been surrendered at the exit check

it inspite of the fact that the

iioiiiassessing authority of the consignor

has in his assessment order passed

under the provision of the Karnataka
Sales Tax Act, 1957 given a finding
that the Very same goods as that

involved in the present case have been
transported out of the State

Karnataka ‘P

2. T he admitted facts in-the—present.’ the it

appellant is a transporter engaged in

transportation of goods. In the

consignment belonging tofla By’ name M/s
Vivek Petro — a registered ;_:fid§r~.,A}garnataka Sales
Tax Act, of a product
called ‘The contention of the
which was required to
be taltenfov the the person ineharge of the

vehicles. at the Aohelokpost of entry after commencement of

the not handed over at exit Check post.

.’_l””£-i__L:refore.,. ‘éi””‘..presumptio11 Lmder Subsection 4 of

Sebtion: is available to hold that the consignment

d;’d_not move out of the State but was sold within the

state.

6

3. In the present case, the transit. pass was_._._issued

by Kannur CheckPost, Kannur and the exit

was Attibele near Hosur. Admittedly, the
reach the destination outside.:the..Sta:te ‘
i.e., Pondicherry. On the basis°’of of

pass [TP] at Attibele exit-.._within.V.the’ time’

under the above said…vprovi’s’ion;j4 notoniy imposed
tax but also levied transported.

The contenitionjr-of was apart
from the representative of
the Mangalore, who was
inchargeff the commencement of the

journey reaeh”edf”the destination and he was the

one.’€’w11QtQok fnfotf only the transit pass but was

the duty of handing over the same at

e)dt__Chee1{I’pfost. Therefore, the owner of the transit

Vehicfevwvas not liable to pay either the tax or the
‘ ‘.pe’naity imposed. However. the order dated 09.12.2003

the Assessing Officer goes to show that the said

defence was not accepted and they proceeded to impose

tax of Rs. lO,800/- and another Rs.l0,800/«w

This was challenged before the

KST Appeal No.229/OSWO4.

4. The appellate au.thority__’i’n the”‘v’pre4sent;

after taking into consideration assessment on
the return submitterlfhy the “goods i.e..
Vivek Petro, there was no
evasion Qpf fif’hfere:tct’fe’,”x’onmliassuniptions taxes
cannot”vhe.iieiz;i:ecl” assessee was able to
‘ample evidence to prove the
movenien_to_t ” the State and not to sell

the According to him, the order of

» ;assVes,smen:t”*passed under Section 12(2) of the Act by the

‘As’sista11tj— vf=Comm1ssioner of Commercial Taxes,

Maiigiaiorve, indicates there was no evasion of any taxes

and all the goods imported by M / s Vivek Petro were the

subject matter of assessment and all the consignments

;

which were to reach Pondieherry unit belorzged_.__t0 the

Very owner M/s Vivek Petro but did in fa’e-t”‘–«re’aeh

Pondicherry which was evident by the

of the Superintendent of Cenitral–.Excj’isevi’

dated 9.9.2003. He also refers i~e1ieape’e.er.yofV

naptha in favour of the and issued’
by the Deputy Co1nine1*ciai””‘1″;a§{:’ fl”‘fi”ieerA’of”Pondicherry.
The assessing authority’had’i”e:er1i§’i:.{o;.afconclusiorz that
all the entries’:ei’fii”eete_d’ did move out of
the State? the appellate authority
aliowiediiitheeiVieypipiégai the appellant, setting
aside:vv”.t,1E1e check post officer dated

Tiled.”-re{r.isiona1 authority took up the

‘ pm”attei5″by”i’way ofmsuo-motto revision and issued a show

ea11sie._h=otiCVer- the assessee calling upon him to explain

co_nter3;ts of the notice. The assessee appeared

beforze’=—the revisional authority and submitted the

‘=e’X’peanati0n. However, the revisional authority found

order of the appellate authority as improper and

‘\\{\ I .«

9

prejudicial to the interest of the State reVenue_for the
following reasons:

I. The appellant is the owner
vehicle has obtained trarisit.::’~..l3ass’-A
No.0185584 dated’ ‘os,ci..7.o2.CV]e . _for*7*
transportation of N’aptlfi’a..f1’om”‘
Kannur, but failed to; lsurrende1’2’ the} 3
Transit pass at _ Exit ” Cheeks-.

Attibele on or befoise 08.0T?A.0:2. On
enquiry th_rough~”*Corresp_onder1ce wlvith
CTO of Att”1″‘.oele_ C.hveck_’».VPost the CTO
Kannur ascertain-ed;th_at’–tl1e’records of
Check pog;.t– r1-o’t’»r._shovsf””passage of
goodsfivehiele N’o.”‘K.A–;.’14.e.8t’)99 through
_.Chec1k_..’Post:__ai1.d the,’ transit pass was
lalsfolfjnot ‘ .si§’1~.r’reridere’;<il and there by
~~~~ .Aeo;1t1*at*g%e.ned' 'Sect1or;'–28AA[2) of KST Act

2. ‘,_The “FAA ” .hlas wrongly allowed the
Appealvl’ ir1′- so far as levy of tax and
penalty _____ “Au/s 28AA[4] & 28AA[5)

. ‘concerned which is against the

..V”«.t’J_1i’dgment of Hon. Supreme Court of

injdia in the case of civil Appeal No.3787

2006 M/s KGOPALA KRISHNA

AND OTHERS Vs STATE OF
KARNATAKA with CA Nos.3788–384~-4» of

2006 dated 25.07.2007. Therefore it is
now proposed to set aside the appeal

order in so for as the provisions of
Section 28AA(4] & (5) are concerned
and to remit the matter of CPO for fresh

10

consideration in the light of the above
judgment. ‘

3. The FAA has misread the provision’ , ”
Section 28(6) of KST Act While allowing”
the appeal as the said provisions–..re1ate4_
to conclusion of provjisiorial asses’sinerlt__:VA.
order by the inspecting au.tho’rity “w_h’ieh_
is independent of priovisieons of _Vsecvtion\:..,,,_.
28AA[4). The eaproceeldings ufsl ‘ 28(6)
and 28AA [4] areV_vlin_depe’11den.t ajildivlthell
powers are confirmed ‘-with ‘the
inspecting, autho’rity’- and the {SP0
respectivelyffi Cin ,th’e’.._ba”siys of orders
passed u/s ‘2a8′{6}.,by’ the ACCT {Ins} ll
Mangalore should ‘not have
linked»–._this proy1sio’n’al_V order with the
q1?_1an};i»iiea.t1oriof taxes’ rnade u/ s 28AA
[‘4)ly.rri’ad’cf by:p.l.___C”}°Q”;p_ Therefore, on this
eQun:t_also,’–.the order passed by

‘ sij;fi”‘ers..frorIi “illegality and liable to

__ beqt1a_slied«f’=v..__ – l

Ultimately’ 4 the appellate authority were

revi§sedi”and ls’e-t–a_side. The orders of assessment and

V ple-naltyoi’ cheek post authority were restored.

ll ‘ 5, Seetion 28–AA of the Karnataka Sales Tax Act reads

‘ , as under::

“Transit of goods by road through the State and
issue of transit pass– {1]V\/’here a vehicle is

carrying goods taxable under this Act-

(a) from any place outside the State
and bound for any place outside the
State and passes through thiys”‘S1,ate;

01’

(b) and which goods ir::._t_o

the State from any_plae’e. they

country and “such, goods are’ “being;

carried iiplacer

stare,-._ V _ V
the driver or any other:’tpers0fi–~i1’i5(;h’arg§e of such
vehicle shall fumish ‘t:’rie=rieees.sary iiriforrnéation and
obtain a ti’ansit.”;oass’– containing such
particulalfs as rnAa.yy,:.be pvre-s_cr1tbved’,”VV–.tjrom the offieer~in–
chargegoi’ first. ‘orbbyarrier after his entry

i1’l'[.O::”[:1″i.t”V’,<«-__Sff'cZ'.v"t~'t?';_V or<a£t_eI'~_n1oVe1fne_nt has Commenced from

7the_ _.9té:e;_éstth<:_'egse f may be, or from the officer

emyp'oWe1"ed"A:.tGrd"t.heepurposes of subsection (3) of

Sect'ion'»2V8–'A, 71,1bpo–n interception of the goods vehicle

ua'f1;er its"e.1jitry&j11t.o the State or after movement has

"Commenced as the case may be.

A”(‘i]’I§he»AV.i’Vvdi’iver or the person-in-charge of the vehicle

s1’1~.a’_1i14j’..–die1iver within the stipulated time a copy of the

~ transit pass obtained under sub-seetiontl) to the

oifficer-in-charge at the last eheekpost. or barrier before

his exit from the State.

{3)lf for any reason, the goods carried in goods
Vehicle are, after entry into the State4…[or_tta_fter

commencement of movement, as the case.~n1a’y.

moved out of the State within the tiniohstipulated

the transit pass, the owne1’_ofthe goods’

furnish to the officer enipowered

reason for such delay and other_ particulars, if any;’g

thereof and such officerslaall after__ due en(V51’~1v1Viry’elxte11dl’

the time oi” exist by arnending transit

pass:

Provided that. whereithe a vehicle are,
after Eth:-*.«i_r:’_* en__ti’y l*:tl1e___Hl:lState, [or after
comn1’enc_ernei*;_t.V as the case may be}
transp.or:t~eEl_; by any other vehicle or
,t¥oni}éya::;:¢3 of H’ proving that the goods have
the State shall be on the owner

of theyehicie voriginally brought the goods into the

;*St;ate. V
{/:i}I:f the di;iye’r”‘or any other pei*son–in-charge of the
uevhiclregllldoes not comply with sub–section [2], it shall
that the goods carried thereby have been

A sold the State by the owner of the vehicle and

shall, notwithstanding anything contained in sub-

” section (5) of section 5, be assessed to tax by the

..*officer empowered in this behalf in the prescribed

rnann CI’ .

(5}lf the owner of the Vehicle [having obtained the

transit pass as provided under sub–section (1) 7f.ai’}s to

deliver the same as provided under sub–se(:_t4iolr:1′[‘2}’V;

shall be liable to pay by way of penalty” ”

exceedin double the amount of ta):”i’evf§g1ble’=.oi1 the”
9 _ ._ . , ._

goods transported.

(6}The amount of tax ‘the perialty leyied’:._unuer this” V S’

Section shall be recoveredéuini the p.reseribed rrtanner.

[7}Where the owv1i’er” of is assessed to
tax under sub»sAection after such
assessn:1.,ventV, l’_’any:;A_go_od.s taA_$EalbieV_._uVjider this Act in a
goods=’atehiclteflufrontanyoutside the State (or
movenaentlifrgoin State, as the case may be]
place outside the State and is
passing’ the prescribed authority

rnay’~idema1V1″d_ from_s;uch owner an amount equivalent

; ‘togtwo times’ the leviable on such goods under this

Act as gsecurityj” ‘

‘ ” prescribed authority after being satisfied

thatlthetgoods Carried in the goods Vehicle in respect of

which the security amount under sub–section(7) was

collected, has passed through the State, shall refund

fffsuch security amount to the owner.

[9)The prescribed authority may by an
order adjust the whole or any part of security
amount towards any amount of tax or penalty
payable under this section by such owner}.

Explanation– in case where a vehicle
owned by a person is hired for t’ransportatiovn
goods by some other person, the h1rer:v~’o£l_th:e”‘VS
vehicle shall for the purposes of t.his

deemed to be the owner of th.e.».V.ehicle].l ” V’

6. Presumption under sub–:”secti_.’or’1llV4 of

the Act undisputedly is a iy’lf’l5\UjFtal i31’6su’T.1E3tcloi:1..rl””Rebutta’lall

presumption could mean th.el:’person alg’ainstVAfivhom the

impugned._o1=derlcarne=to’–.be«pa-ssed by the check–post officer
must1.be’– authorities that there was no
evasion oftpayment’.:oi”,in’come tax. If the intention of the

legislature wer’e–..to be that irrespective of payment of tax on

.’ ‘the goods –in’=questio11, rebuttal presumption was available to

whether those goods were subjected to

payriient or not would be irrelevant. In view of the fact

i.tlhat rebuttal evidence was allowed to be brought on record

the party in question, it would be open for him to

= .—-establish that in fact TP was handed over at exit check post

or that the goods in question did move out of the State.
Therefore, presumption of sale within the State was not

available to the revenue.

‘7. In the present case, the contention ofothe’

consistently was to the effect that a1o..n__;§ wit:1″th’e-E:1;;<:£%erpt' the V'

vehicie, the owner of the goods a–lsof_traveiie_c1'-.}§ecau'g.3

consignor and the consignee-._were'~ one a':r_1d{'i;1–1eH san1e.–_"

Therefore, the entire V'_forn1aiitieis..:_at.__the'check Jfaost were
looked after by the o'f.thhe'goods. Hence, the
driver normally."/ho VtZ0"u}tj ibe not know the
details. had to move from
Manga1ore'to is outside the State. Sub-
sec. {Bi contempiates that the goods

irnpiorted by theetowner if moved out of the State, he has to

'ohtainsd t.ra.n's'it:V pass, i.e. the driver or the person in charge of

. the pvehicte. presumption t1I1d€1" subwsec. (4) as aiready

sta–t'edv–._'.is rebuttal presumption and the appellant relies

it upon the order of the assessment of the consignor or the

dkjconsignee of the goods. It is also not disputed by the

.-revenue that on account of the notice sent by the check–post

I6

officer pertaining to l.\/I/ s. Vivek Petro, investigation was
made \m'th regard to the accounts of M/s. Vivek Petro and

even intelligence wing of the revenue also made a thoro.ugh

investigation both at lviangalore and Pondi.cherv;y;.fgglufaijiass

the business of M/ s. Vivek l~"'etro. The rnate'1<ial:.that

placed before the assessing office:-? at

of assessment made it clearthat whatever' goocls"that*.we1'e=.%

imported, i.e. a product called»ina.ptha'"wase factflsent to

Pondhicherry and everything"w'aseacclounted atljondicherry.
Even certified by Central at Pondicherry.

lt is also notedthat whatexter payable t.o the

Central Excilsje Defiai'1<rri'ent wasalso paid and these are the

findings. of authority. When once the

assessing authority took up the assessment process as

a'-V:;:$'artA~-soi'rvt.the inve's't'igation into the missing of / or non-

at exit check post. so far as M/ s. Vivek

'1»~*«.=;fi¥o is_ coneeriied, was satisfied that all the goods that were

importecl which were meant to be sent to Ponchicherry did

reach and there was not even a single incident where the

tevertue was able to establish that it was sold within the

State, was justified in saying that the assessee i.e. M/s.

Vivek Petro had accounted for all the goods t.hVa't44_:v.{e1'e

imported by them and nothing escaped from _

View of the matter, when once by way of 'C'V«:riC§¢'er1C:é,"~~

the appellant. relies upon the assessmentivolrdyetr._§jertaini_ng;;to

M/ s. Vivek Petro, in the' absence oi" the 'uD:e;.3arit;.me1itl°.

establising that the Consignmlentwinyyquestioindldidlynot move
outside the State, "was not 'justified in
setting aside the OI'Cl€At'V_SV_v:'C'-All As a
matter of not even discuss
what was reiiied upon by the owner of
the of the assessing authority
had lfin

V. _8. _:the..'– other": hand, the learned Government

Advocate 1SA.lTEllI' to bring to our notice that the Order

'"oi":_asisessni'e:it 'p.ert.aining to M / s. Vivek Petro was the subject

matter _olf"lsu:'o moto revision under section 21, but the
revisiorial authority confirmed the said order of assessment
of the assessing oliicer. When once the order of assessment

or M/s. Vivek Petro has reached finality, it would not be

open to the Department: to say that the presumpt.i0_n__ under

sub~sec. {4} of Sec. 28–AA is still available and is

not rebutied. In View of the above diseussionarid 1:éas'oin,i'n:g,'*. '

we are of the opinion, the appeal (_i_ee.ser_\'/es ;.:$"b'e

Accordingly, the appeal is valleiwed

order of the revisional authO1'=iei;jk"'i.da1:ec1"2i'."}fii;2OQ8.W If any

amount has been Vrergpveredm the aipjielivani either
towards tax or penalty; ihe $.ha3.A1':he_j.refur1ded Within
three I1101'l*L'l'1Sufi'{é.I11-_th€::'da#fi":Gi ;.~.e':2~c§'ip:,g'r eopy of the order.

….

Sd/-

JUDGE