2023 (3) TMI 493 - HC - VAT / Sales Tax

Penalty and assessment orders for 2009-11 set aside due to reliance on third-party slips, violating fair investigation rules under Section 143.

The HC set aside the penalty and assessment orders for the years 2009-10 and 2010-11, which were mechanically based on penalty orders relying on slips ... Legality of the penalty orders and assessment orders - penalty imposed on the petitioner based on the data contained in the slips that were recovered from the premises of the petitioner - HELD THAT:- These are cases where the assessment for the years 2009-10 and 2010- 11 were mechanically completed based solely on the findings contained in the penalty orders passed by the Intelligence Officer for the years 2008-09, 2009-10 and 2010-11. The penalty orders were passed by placing reliance on the data contained in certain slips recovered from the business premises of the petitioner during a shop inspection that was carried out on 4.9.2010. It is not in dispute that those slips were recovered from one Balachandran, who was present in the premises of the petitioner on the date of inspection. As rightly found by the First Appellate Authority, the fact that Sri. K.I. Sreenivasan and Sri.K.V. Abdul Rasheed were deposing against their own interests by admitting that the data in the slips pertained to their business, ought to have weighed with the Department to initiate an enquiry against the said persons to ascertain whether they had suppressed any turnover for the purposes of taxation. They could have done this simultaneously with a protective assessment against the petitioner assessee. The fact that they did not do so ought to have operated against them in an adjudication of the petitioner's case. On the contrary, the Intelligence Officer as also the Tribunal appears to have discarded this valuable evidence and mechanically presumed that the data contained in the slips recovered from the premises of the petitioner pertained to the business of the petitioner. Since there are no justification in the Intelligence Officer as also the Tribunal having discarded the evidence tendered by Sri. Balachandran, Sri. K.I. Sreenivasan and Sri. K.V. Abdul Rasheed, we cannot uphold the reasoning of the Tribunal, in the orders impugned before us, as correct or rational. Further, as the assessment orders for the assessment years 2009-10 and 2010-11 were based on the penalty orders for the said years, and the said penalty orders in this judgment are set aside, the impugned order of the Tribunal, to the extent it restores the assessment orders for the said years, is also set aside. Revision allowed. Issues Involved:1. Legality of the penalty orders under the Kerala Value Added Tax Act (KVAT Act) for assessment years 2008-09, 2009-10, and 2010-11.2. Legality of the assessment orders for the same years.3. Validity of the evidence used to impose penalties and assessments.4. Appropriateness of the Tribunal's decision to restore penalty and assessment orders.Detailed Analysis:1. Legality of the Penalty Orders:The core issue pertains to the legality of the penalty orders under the KVAT Act for the assessment years 2008-09, 2009-10, and 2010-11. The penalties were initially imposed based on a shop inspection conducted on 4.9.2010, where certain slips were recovered. The Intelligence Officer imposed penalties based on these slips, assuming they pertained to the petitioner's business. The First Appellate Authority, however, set aside these penalties, directing a fresh examination of the seized documents. In the subsequent proceedings, the penalties were re-imposed, leading to further appeals. The Tribunal ultimately restored the penalties, but the High Court found this reasoning flawed, setting aside the penalty orders.2. Legality of the Assessment Orders:The assessment orders for the years 2009-10 and 2010-11 were closely tied to the penalty orders. The Tribunal had restored these assessment orders based on the upheld penalties. However, the High Court noted that the assessments were mechanically completed based on the penalty findings, which were themselves based on disputed evidence. The High Court's decision to set aside the penalty orders also necessitated the setting aside of the related assessment orders.3. Validity of the Evidence Used:The evidence in question was slips recovered from one Balachandran during the inspection. Balachandran, along with other dealers, deposed that the slips pertained to businesses other than the petitioner's. The First Appellate Authority accepted this evidence, noting that the dealers were deposing against their own interests. The Tribunal, however, disregarded this evidence, leading to the restoration of penalties. The High Court criticized this approach, emphasizing that the evidence should have been given due weight, and the Department should have investigated the other dealers' admissions.4. Appropriateness of the Tribunal's Decision:The Tribunal's decision to restore the penalty and assessment orders was based on the presumption that the slips pertained to the petitioner's business. The High Court found this reasoning unsatisfactory, noting that the Tribunal and the Intelligence Officer failed to justify discarding the evidence provided by Balachandran and the other dealers. The High Court upheld the First Appellate Authority's reasoning, which found the penalties unsustainable due to reliance on presumptions and lack of proper evidence.Conclusion:The High Court set aside the Tribunal's decision, restoring the penalties and assessments for the years 2008-09, 2009-10, and 2010-11. The Court found the First Appellate Authority's reasoning more acceptable, emphasizing the need for proper evaluation of evidence and rejecting mechanical presumptions. The revisions were allowed in favor of the assessee, and the questions of law were answered against the Revenue.