TaxTMI 
TaxTMI 
2010 (9) TMI 975
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.... at the exit checkpost. Therefore, a presumption, under sub-section (4) of section 28AA is available to hold that the consignment did not move out of the State but was sold within the State. In the present case, the transit pass was issued by Kannur Check-post, Kannur, and the exit check-post was Attibele near Hosur. Admittedly, the goods were to reach the destination outside the State of Karnataka, i.e., Pondicherry. On the basis of non-receipt of transit pass (TP) at Attibele exit within the prescribed time under the abovesaid provision, they not only imposed tax but also levied penalty on the goods transported. The contention of the appellant/assessee was apart from the driver there was authorised representative of the consignor, i.e., Vivek Petro, Mangalore, who was in-charge of the goods from the commencement of the journey till it reached the destination and he was the one who took not only the transit pass but was entrusted with the duty of handing over the same at exit check-post. Therefore, the owner of the vehicle was not liable to pay either the tax or the penalty imposed. However, the order dated December 24, 2003 by the assessing officer goes to show that the said def....
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....rtained that the records of check-post do not show passage of goods vehicle No. KA.19A-3491 through check-post and the transit pass was also not surrendered and thereby contravened section 18B(2) of the Karnataka Tax on Entry of Goods Act, 1979. 2.The first appellate authority has wrongly allowed the appeal in so far as levy of tax and penalty under section 18B(4) and 18B(5) concerned which is against the judgment of the honourable Supreme Court of India in the case of Civil Appeal No. 3787 of 2006 Gopalakrishna Shetty v. State of Karnataka(1) with C.A. Nos. 37883844 of 2006 dated July 25, 2007. In view of the judgment of the honourable Supreme Court, the facts prevalent in the case of the assessee are as per the facts considered by the honourable Supreme Court, and therefore it is now proposed to set aside the appeal order in so for as the provisions of section 18B(4) and (5) are concerned and to remit the matter of CPO for fresh consideration in the light of the above judgment. Therefore it is hereby proposed to set aside the said appeal order and alternatively to remit the matter to the Check-post Officer, STCP, (1)See [2008] 13 VST 365 (SC). Kannur for fresh consideration in ....
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....ssment and penalty of the check-post authority." Ultimately the orders of the appellate authority were revised and set aside. The orders of assessment and penalty of the check-post authority were restored. Section 28AA of the Karnataka Sales Tax Act reads as under: 28AA. Transit of goods by road through the State and issue of transit pass.-(1) Where 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 the State; or (b) and which goods are imported into the State from any place outside the country and such goods are being carried to any place outside the State, the driver or any other person in-charge of such vehicle shall furnish the necessary information and obtained a transit pass in duplicate containing such particulars as may be prescribed, from the officer in-charge of the first check-post or barrier after his entry into the State or after movement has commenced from the State as the case may be, or from the officer empowered for the purposes of subsection (3) of section 28A, upon interception of the goods vehicle after its entry into the State or after movement has com....
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....ods 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 such 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 transportation of goods by some other person including a transporting or any other similar agency, both the persons shall for the purposes of this section, be deemed to be the owner of the vehicle, and shall be jointly and severally liable to pay any amount of tax or penalty payable." Presumption under sub-section (4) of section 28AA of the Act undisputedly is a rebuttable presumption. Rebuttable presumption would mean the person against whom the impugned order came to be passed by the check-post officer must be able to satisfy the authorities that there was no evasion of payment of tax. If the intention of the Legislature were to be that irrespective of payment of tax on the goods in question, rebuttable presumption was available to the assessee, then whethe....