TaxTMI 
TaxTMI 
2011 (4) TMI 1250
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....ainted. Hence it is suspected that it is for sale or contract work within the State. The registration number of the vehicle is also not displayed. Hence, the SD and cess demanded." According to the petitioner, the excavator was purchased from a person at Pondicherry, by virtue of a document styled as "sale deed" (exhibit P1). The excavator was bearing Regn. No: PY01/Y-9607. It is the further case that, after the purchase, complete re-painting of the vehicle was done for the purpose of re-registration at Tamil Nadu and in that process the registration number written on the vehicle was erased, with a view to paint the new number, after re-registration. But, in the meanwhile, the petitioner got a job-work at "Meenakshipuram" in Tamil Nadu State and the vehicle was taken from "Dharmapuram" to "Meenakshipuram". It is the contention of the petitioner that, the vehicle was wrongly driven to the Kerala border, since the driver had committed a mistake in following proper route. Instead of turning the vehicle towards "Meenakshipuram", at a junction which is only about 50 Mtrs away from the border check post, the driver took the vehicle directly to the Kerala border. According to the petitio....
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....sed on behalf of the respondents regarding maintainability of the writ petition, based on availability of alternative remedy. Of course, exhibit P4 is an order appealable under the provisions of the KVATAct, before the statutory authority. But the challenge in this writ petition is on the allegation of illegality in the very proceedings initiated, under section 47 of the KVATAct. The case stands on a different footing in par with the normal detentions effected under section 47(2), wherein transport of goods to the State are being intercepted alleging nonaccompanying of required documents or alleging reasons to suspect attempt at evasion of payment of tax due under the KVATAct. The petitioner is challenging the imposition of penalty on the ground that it was issued without arriving at any finding regarding existence of the ingredients warranting such imposition. It is settled law by this time that, availability of an alternative remedy is not an absolute bar in entertaining writ petitions under article 226, when patent illegality is alleged or when there is allegation of lack of jurisdiction, or when the impugned order is assailed as totally unsustainable in the eye of law. Hence I ....
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....spicion regarding attempt of evasion of tax, penalty can be imposed after completing the enquiry, only if the officer arrives at conclusive finding that, such attempt was actually there in existence. So also, even if the transport was not accompanied by proper and genuine documents, in case where such documents are necessary, penalty could not be imposed unless the enquiry officer arrives at conclusive finding that the non-availability of proper and genuine documents was with an intention to evade payment of tax. Therefore it is evident that penalty under section 47(6) of the Act can be imposed only if the enquiry officer arrives at a finding that there was an attempt to evade payment of tax. While analysing the findings contained in exhibit P4, in view of the legal position as enumerated above, it is pertinent to note that the findings arrived by the second respondent were as follows: "In any view of the matter, the suspicion of attempt at evasion of tax entertained by the Commercial Tax Inspector, Commercial Tax Check-post, Gopalapuram, is just and reasonable. The claim of the owner of the JCB that the transportation of the goods does not involve any attempt at evasion of tax i....
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....xcavator to "Meenakshipuram". It is further contended that the petitioner is not in a position to adduce any negative evidence in order to substantiate the claim that the excavator was not intended to be brought into the State of Kerala. On the other hand, the contention is that there was absolutely no evidence or proof available with the enquiry officer to arrive at any conclusion that the excavator was attempted to be brought into the State of Kerala with a view to evade payment of tax due. While considering the rival contentions, it is evident that the authority had drawn a presumption from the facts and circumstances that the transport was not accompanied by any documents, to the effect that the petitioner had attempted to evade tax due on the transport of goods. Such a presumption is drawn merely by saying that the explanation put forth regarding the transport was incredible and there was "missing links". The crucial question is as to whether any conclusive finding can be arrived regarding attempt in evasion of payment of tax, by drawing such a presumption. I am of the view that the conclusive finding contemplated under section 47(6) on the aspect of attempt to evade tax, co....