2006 (3) TMI 700 - HC - VAT and Sales Tax

Court upholds seizure legality, penalties under section 45A KGST Act, affirms procedural compliance, appellant burden of proof failure. Penalties upheld, appeals dismissed.

VJ. Joseph Versus Intelligence Officer, Squad No. II, Agricultural Income-Tax and Sales Tax, Kottayam and others

VJ. Joseph Versus Intelligence Officer, Squad No. II, Agricultural Income-Tax and Sales Tax, Kottayam and others - [2006] 145 STC 479 (Ker) Issues Involved:1. Legality of the seizure of records.2. Validity of the penalty imposed under section 45A of the KGST Act.3. Adherence to procedural requirements during the search and seizure.4. Burden of proof regarding the liability to penalty.Issue-wise Detailed Analysis:1. Legality of the seizure of records:The appellant contended that the records relied upon by the authorities did not belong to him and that no records were recovered from his shop. However, the court noted that the appellant's denial of the seizure of records was an after-thought. The Deputy Commissioner verified the records and found similarities between the stock position noted in the seized records and the stock register GS12, indicating that the records pertained to the appellant's business. The court concluded that the records seized and relied upon indeed belonged to the appellant.2. Validity of the penalty imposed under section 45A of the KGST Act:The Intelligence Officer imposed penalties for the years 1984-85, 1985-86, and 1986-87 based on the estimated suppressed turnover. The penalties were subsequently modified by the Deputy Commissioner. The appellant challenged these penalties, but the court upheld the imposition of penalties, noting that the appellant failed to discharge the burden of proof under Explanation I to sub-section (1) of section 45A of the KGST Act. The court found that the materials and records seized during the search justified the imposition of penalties.3. Adherence to procedural requirements during the search and seizure:The appellant argued that the search and seizure were not conducted in accordance with section 28(4) and 28(5) of the KGST Act and section 100 of the Code of Criminal Procedure, specifically citing the lack of a mahazar. The court clarified that while the term 'mahazar' is not defined in the Code of Criminal Procedure, the details typically included in a mahazar were incorporated in the Shop Inspection Report (SIR). The court held that the SIR satisfied the legal requirements, and the absence of a separate mahazar did not invalidate the search and seizure. The court also referenced precedents indicating that even if the search and seizure were illegal, the documents and materials obtained could still be relied upon for assessment and proceedings under section 45A of the KGST Act.4. Burden of proof regarding the liability to penalty:Explanation I of section 45A of the KGST Act places the burden of proving that a person is not liable to penalty on that person. The court found that the appellant had the opportunity to peruse the seized records and failed to demonstrate that the records did not pertain to his business. The Deputy Commissioner's verification of the seized records and stock registers supported the conclusion that the records were related to the appellant's business. Consequently, the appellant did not meet the burden of proof to avoid the penalty.Conclusion:The court dismissed the writ appeals, affirming the legality of the seizure, the validity of the penalties imposed, the adherence to procedural requirements during the search and seizure, and the appellant's failure to discharge the burden of proof. The judgment upheld the penalties imposed under section 45A of the KGST Act and dismissed the appeals with costs.