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IN THE HIGH COURT OF KARNATAKA, BAHGALGRE
BATEB THIS THE 29" DAY OF SEPTEMBER, 2010
PRESENT
THE HONBLE MR3. JUSTICE MANJULA
THE 1a:o1~z'BLE MR. JUSTICE K. A
'1'.A..E.'i'. No.3 Iii?' ,« .
BI3'I'W3:»EN J n V
Sri. Deepak D' Souza
S/0 Sebastian D' Souza
SAC House, HaIeym'1gadyA"Po.ét :4
M-a.nga1ore--574 146'» - ...AI'PELLAN'I'
(By éx§i.*<f3. vK:.'*.f; and Sri. 9. E. Umesh,
M/s. (flpbai Law'*«.I':z9."-Atiirocatesl
Aéd§'tionai Végmmissioner of
\\\J{"'"és
' .V.CIozn32gér_c:via.;i---Taxes
. E:;ne5'-'I;'--X?_'a:iVi};§?a Terige Bhavan
'G«amihitxagax':_
B"e.ng~a1¢:ei-560 009 RES?ORDEN'I'
A. {By S'r"i.. T. K. Vedamdurthy, HCGP)
This TAET is filed :1/s 16 of the KTEG Act
§agaix1st the Revision Order dated 3.11.2008 passed
' in No.ZAC--1/MNG/SMR-()7 83 0?A/0'?-08 on the file
of the Add}. Commissianer of Commercial Taxes,
Zone-1, Bangalore, revising and setting aside the
appeai orders and restoring the orders of assessment
and penalty of the check post authority and
accoréingly concluding the revision proceedings.
"3
This TAET coming on for Admission this day,
Manjula Chellur J., delivered the fallowing:
J U D G M E N '1?
On our direction, the learned Government
Advocate placed before Ire the original file perteirning
to the assessment of sales tax for the
2002-63 of M/s. Vivek Petra Co. ._si;a§:v::sfi:.V:
'mls. vivek Petra] and the same :s'%;a¢;-grade " ' f
2.. The admitted facts izxddflre
the engaged in the
busifieseoéf trarfiepdrtefiibn of goods; in the month ef
Jugxe _ desonsimment belonging to a
M/s 'Vivek Petro ------a a registered
.3:ieé;1erf~:-;vrrde.r7'Karnataka Tax on Entry of Goods Act,
§.;Q?9.__"t1*e§i3eported consignment of a. product called
.. Tzragdthe' from Mangalore; the contention of the
A' "A._VVd'e1iartrr1er1t was the transit: parts which was required
,,,_\\j\
":to be taken by the driver or the person incharge of
the vehicie at the check post of entry after
commencement of the transit was not handed over
\,_
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at exit check post; therefore, a presumption under
Subsection 4 of Section 3.8-B is available to hold
that the consimment did not move out of thestate
but wags mid within the Etate.
. In the present case, the tra.nsi.t.__
issued by Kannur Cl1eckPosi:, Kannu.r_"'ar:1.d'
cheekpost was Attibeie near
goods were to reach the dos-tiliaeationt.Torrizsfiieie 'i:¥:;ie~~r
State of Karr1atakai.e., Po'i::§icherry'.V_ die oasis of'
nonwreceipt of trvij.-&:4:_i"a,~_it gtzttbele exit
witfiin time under the above said
provisiitzxgtotheggf 'trot imposeri tars: but also levied
p,eé;}elty onathey goods transported. The contention
Vt:§_1 :e:«apfiellant/assessee was apart from the driver
2 étlithorised representative of the consigner
Petra, Béanylore, who was incharge of the
'A ge_ode from the commencement of the journey till it
treeehed the destination and he was the one who
H too}: not may the transit pass but was entrusted
with the duty of handing over the same at exit
check post. Therefore, the owner of the transit
,,\\'_f\
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vehicie was not liable to pay either the tax or the
penalty imposed. However, the order dated
24.12.2003
by the Assessing Offlcer goes tr!”–Show
that the said defence was not accepted._éeg§i:4’e:’ti§¢’ey
proceeded to impose tax of Rs.6,6’Mr/h–H
another Rs.fi,674/- as 1Je11aJt;:5y;.»At»V 9
before the appeliate a_.utheri.t§*–.. in A’
130.232] 03-04. ._
4.The appeiiate aut?:…~eri_ty°–~i_1; thegvreéent case
after taking into the assessment
on by the owner of the goods
i.e., Vti’vek _Pé’£:r’iie,:’ lktiititrrgxalare, concluded that there
were no einrasionv of any tax. Therefore, on
»V:VaeVsur§_ar1ti§n.s; taxes cannot be levied when the
H ‘- f5Lssegs7«§e%r able to establish. that there was ample
er€irIe”r3,cie4’.to prove the movement of goods outside
the ‘fittate ané not said within the State. He also
“”§r’et’Aers to the release of goods of naptha in favour of
H the consigner and also ietters issued by the Deputy
Commercial Tax Officer at’ Pondicherry. The
assessing autherity had come to conciusien that all
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the entries effecteci by the consigaar did move out
ef the State. Based on_ this finding, the apspefiate
authority aliowed the appeal in favour the
appellant, setting asiée the orders of
officer dated 24.12.2903.
5. The revisional authoi;:;ittfif::to;>?£_
by way of suo«-metto :fe1;f_i:«sioéxx;_t’a’;:1d
cause nmtice to the him to
explain the con.tei”;.ts. of jgfifice. assessee
appearad before jvtiatuthority and
subfiiitetiiihé fiowever, the revisional
authteritty of the appellate autharity
as_in1pré’p¢_’r .a;r;a<itA'*§$z?ts.iné1dicia1 to the interest of the
mjrentia' """ Ultimately the orders of the
t were revised and set–a.side. The
'efders.t§f.V.aiissessment and penalty of the check post
authgéity were restored.
6. Sec. 18$ :31′ the Kamataka Tax on Entry of
Genés fiat, 1979 reads as undar:
\ “~JrA\
:5
See.I8-B»-Transit of goods by road
through the State and issue of transit
pass:
[1)Where a vehicie is carrying goo€i:3s”‘.o
taxable under this Act,
(a) from any other piece outsiitiet A
State and bound for anyglece c–utsi.'{i_e: ‘i1V.1fi’_
State and passes throng}: $ta_te’:A ‘V j
(by and which gooaseer¢.mp¢¢t¢aemtr’tt
the State from en§f”‘~.plac.e .__outte’i§ié~._t”i:he’:
country and such go_oV(_isV axje beingcarried
to any p1ace’o4_1§:tsid’e “$’t,e.i:e:_, the driver
or any other persofiéine-cIierge_’.. of such
vehic_l_e.q ejhalfzii 3 necessary
a:a~:r§d’..Vv__obt;ariVVt1 a transit pass in
zdntplieete’fcottt=:§i-oing such particulars as
mey_VttbeV’p_rescri$ed, from the officer~in-
charge ‘A the first oheckpost or barrier
. L}vtfter««_._his entry into the State or after
m¢eex-mat has commenced from the
the case may be, or from the
Z ‘officer empowered for the purposes of
eelbwsection (3) of section 28-A, upon
interception of the goods vehicle after its
entry into the State or after movement
has commenced as the case may he.)
,.\%X
(2) The driver or the person-inw
charge of the vehicle shall deliver within
the stipulated time 3. copy of transit page
obtained under sub section (1) to ”
officer~–in~–cha.rge at last checkpofi.’
barrier before his exit from the Statei. tt
{3)If for any re;e.so:tt,’Afjv
carried in a goods Vehicle-..Aere, ai’te’.:’entry=–4
into the State (or eft,e’r._+eoIti1I§e31ee’:ne–:it”of:
movement, the_._..Vi§e.se~.,_v ma.y«.b_e)J§not
moved out ofthe the time
stipulated in owner
of the ogms otvehtseleeoevshazz ‘tn;r:;:sh to the
omce; ¢ogsterea 15. this behalf the
reasons’ ‘4..__:e:.:.c.Er1 delay and other
pettieolerstify thereof and such officer
‘ ‘V shall extfteizjdue enquiry extend the time of
t suitably amending the transit
fitovided that where the goods
x ‘eet1’§eé by a vehicle me after their entry
“ie.to the State, (or after commencement
of movement, as the case may be)
transported outside the State by any
other vehicle or conveyances, the extras of
proving that the goods have actually
moved out of the State shall be on the
M ‘xfk
awner of the vehicie who originally
brought the goods into the State.
(4)13 the driver or any other perscza
inwchaxge of the vehicle does not
with sub-section(2), it shad! be
that the goods carried thereby _113.9_ée:.b§é_.{:exn1_
sold within the State by the .qfirn£:: 4
shall,
anything contain~»§_<i«–.._V in '7-,thisV
vehicle and
assessed to tax by tfi'-a_V'tofficeVt'~etin1iowte;red
in this behalf 'in_'_th¢Atj$te:§¢ribgAd manner.
(5) If the tbierfnér.¢'f::'th§tt'tra.1ii3ie fails to
obtain the: tra;fisit:j.~aV5.3.':'tas tparéxvictied unéer
:V4t,5ll-.11'v'~StV.¢t3';t°""fi:"'5"-.t3t"t fails to deliver the
Same as._t}3tc*fi'é.§d"'.under subsection (2),
A _ _ he tshatlltbé liahié to pay by way of penalty
sum afi0t….exceeding (female the am-aunt
.,;&fVt.a:x.l_eviabIe on the gooés transported.
T’ The amount of tax and the
v_petj§a:=i1ty ievied under this section. shall be
~~ tn:-covered in the prescribed manner.
Explanation: In case where a. vehicle
owned by a. person is hired for
transportation of goods by some other
perscn, the hirer of the vehicle shall for
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the purposes of this section be deemed to
be the owner of the vehicle.)”
‘2’. Presumption under sub-«section (3) of sec.
18-B of the Act Imdisputedly is a refietteble
presumption. Rebuttal presumption
the person @inst whom the jmpug:3ed–:.1o.r:&’e:reeztieu
to be passed by the checkqaoet
to satisfy the authoritiee ‘t_hatVthere
of payment of tax. If the fiitention of legislature
were to be that irres.3.eeet’tva+t_»pef:it;ent of tax on the
goods” et;ies’tior;V;*-‘ reba;itta.I presumption was
avaiI’ebIe.’_ to “then whether those goods
were stxfbjeetedv-_to–. oa§ment of tax or not wouid be
A Irrvieifi of the fact that rebuttal evidence
to be brought on record by the party in
woulci be open for him to establish that
. ‘State.
Ax-
in TI’ was hanéed over at exit check post or
A the goods in question did move out of the
Therefore, presumption of sale within the
State would not be avaiiable to the revenue.
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8. In the present case, the contention of the
appeilant corrsieteetiy was to the effect that along
with the ériver of the vehicle, the owner of the
goods also traveller} because the consignor ei:ide.the
consignee were one and the same. Theref§t§’,’V»I’
entire formalities at the cheek
after by the representative o§fA_ther4e5gAeor§s{§.’.’Renate
driver who normally woeulgi be’._tliiterat’e
know the details. Appmerrthf in this the goeée
haé to move from V1;’§i:£i;r::ga’_ior–e,’te.__1§o1z(ticherry, outside
the oitheeetion 18—-B contemplates
that Vteet by the owner meved out
of_4:k,1e s£ate,’h’e obtain transit pass, i.e. the
0£..theH;A5ere5en in charge of the vehicie. The
‘Vt§;reett:m;§)”tieh’_i.under sub-sec. (3) as already stated is e.
re.hut’te3:vt’f9resumption and the appellant relies upon
_ the “erect of the assessment at’ the coesignor er the
–.._”eeeeignee of the geods.
9. It is also not disputed by the revenue that in
View ef the notice sent by the check~post offieer
pertaining te M/e. Vivek Petra, investigation was
:1
made with regard to the accounts of M15. Vivek
Petro and even intelligence wing of the revenue also
made a thorough investigation both at Marzgalore
and Pondieherry, so far as the Business ,
Vivek Petra. The material that was
the asseeeing officer at the time of” of
assessment indicates whetepverj’ T :t’}1etf-ee.___y;we;’e
imported, Le. a pro<i11cttV_c'a_1.ied–"ifiepthetteaso
sent to Pondhictzerry 'aecoefinted at
Pondicherry. It evei:,_'b§f Central Excise
_at 'Whatever duty that was
payatfle to Excise Department was also
paid.. gs gaiexivthe' of the assessing authority.
. V. _W!i:.ez%r§'t*z:aIi'ce thevvtteoeeessing authority who took up the
proceedings as a part of the
Ain_ves_tiget:ion into the missing of I or none
_ ecceutiting of'1"Ps. at exit check post, so far 3.5 mils.
A' 'eAV_V"£'i*u;?ek Petra is concerned, it was satisfied that all the
goods that were imported which were meant te be
sent ta Ponebieherry did reach I'ondichery and not
even. a. single incident the reeeame was able to
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establish that it was sold within the State. He was
justified in saying that the assesses i.e. M/s. Vivek
Petra had accounted all the goods tb-.et~..4_:”t3ere
imported by them and nothing escaped
In that View of the matter,_ yczlten
rebnttable evidence, the apj3ellen.t’ re1iiee:”uj:;on5.”t’ti1e
assessment oréer pertaiitieg int’
the absence of the Departr£1en’t..nesteiaiieingi that the
consignment in queetiorzefiitluiitotuieove outside the
State, revieigoxtal iiot justified in
sett:ir:ig’t’e.ei:de e’z%§.l’ersA”o§”‘tV:l1e appellate authority.
As revisiorzai authority did not
even, diecees the rebuttabie evidence relied
the owi3eVr of the vehicle and whether the
“eseessing authority had reached finality
‘er Vnotr. ” 1
.._1b.-»-” 03:1 the other hand, the learned
..Crove’t’fimeot Advocate is fair enough to bring to our
“‘._tzio’i’Aice that the order of assessment pertaining to
= – 3. Viva}; Petro was the subject matter of sue mote
revision under section 23., but the revisional
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authority confirmed the said order of assessment of
the assessing officer. When once the order of
assessment of M13. Vivek Petro has reached finality,
it would not be open to the Bepartment :th.at
the presumption uncier sub–sec. (3) of
still avaiiabie and the same 1s’hoot.;e§ug.¢§§i;rrnrivsawt r
of the above discussion and
opinion, the appeal desérv,§s._tto
Accordingly, the appeal, i$.VVa1§oWeed setting aside
the order of tiztf _Ar;§vi;$i.oi:a1.t’.A:”~authority dated
been recovered from
the o{;2péllafit_tVéVit2:§é’r:’:L:’iowards tax or penalty, the
sa§:t1’eeo..sh2rV1″£’-»”refilntied within three months from
reoetot of a copy of the order.
Sfii *
fidga
;Sd7i~»
ifidge
” V “oak
