TaxTMI 
TaxTMI 
2016 (9) TMI 611
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....assessment year in question a motor vehicle was sold by the revisionist to M/s Motor & General Sales Limited, Karnal, Haryana vide Bill No. 30698 dated 24 March 1992. The aforesaid vehicle is stated to have been sold by M/s Motor & General Sales on hire purchase to one Sri Naseem Ahmad. It transpires that Sri Naseem Ahmad obtained a Form - 34 on 13 June 1992 at the entry check post at Kairana, District Muzaffarnagar for the purposes of taking the vehicle to the State of Bihar. This Form - 34 was not got cancelled at the exit check-post of the State of U.P. On 25 January 2005, a tax of Rs. 39,000/- came to be levied upon the revisionist by the Assistant Commissioner, Trade Tax on the ground of violation of Section 28-B of the U.P. Trade Tax Act, 1948 ^1948 Act. By a separate order (challenged in Trade Tax Revision No. 558 of 2011) a penalty of Rs. 1,24,800 came to be imposed upon the revisionist in terms of the provisions of Section 15A(1)(g) of the 1948 Act. Sri Krishna Agarwal, learned counsel for the revisionist has assailed both the levy of tax as well as the imposition of penalty and has advanced the following submissions. Sri Agarwal submits that admittedly the vehicle i....
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....above Sri Pandey placed emphasis upon the facts as gathered by the respondent-authorities and which stood recorded in the orders impugned. He highlighted the findings recorded in the order of the Tribunal to the effect that the vehicle had come to be registered with the transport authorities at Gorakhpur while the address of the selling dealer was shown to be at Azamgarh. This, Sri Pandey submits, has compelled the Tribunal to correctly come to a conclusion that the vehicle had been sold within the State of U.P. He further placed reliance upon Clause (2) of the hire purchase agreement to submit that the owner of the chassis in question was shown to be the revisionist itself and in view of the above he submitted that both the levy of tax and imposition of penalty was clearly justified. It is these rival submissions which fall for consideration. Since the determination of the rival submissions would pivot around the provisions of Section 28-B, it would be apposite to extract the said section which is in the following terms: - "Section 28-B. Transit of goods by road through the State and issue of transit pass. When a vehicle coming from any place outside the State....
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....on be deemed to the owner of the vehicle. It becomes pertinent to note here that the presumption of sale embodied in Section 28-B has been held to be a rebuttable presumption in Sodhi Transport Co. Vs. State of U.P. (1986) 2 SCC 486. The Supreme Court described the ambit of a rebuttable presumption in the following words: "14. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates that production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of....
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....d. A person who sells goods inside the State of Uttar Pradesh and fulfills the other conditions prescribed in that behalf is a dealer even as per amendments made in 1959, 1961, 1964, 1973 and 1978 to the said definition. There is, therefore, no substance in the contention that a transporter was being made liable for the first time after 1979 with retrospective effect to pay sales tax on a transaction which is not a sale. Tax becomes payable by him only after a finding is recorded that he has sold the goods inside the State though with the help of the presumption which is a rebuttable one."(emphasis supplied) Sodhi Transport, we may note, was subsequently noticed and explained in Heinz India (P) Ltd. Vs. State of U.P.5 wherein the Supreme Court observed as under:- "56. Mr Chandra, however, laid considerable emphasis on the words "tending to show that the real fact is not as presumed", to argue that the test applied by this Court in rebuttable presumptions had been the test of "preponderance of probability". We do not think so. It is well settled that a decision is an authority for the point it decides. It is equally well settled that the text of the decision cannot be re....
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....he fact presumed is not the actual fact. Our answer to Question 2 accordingly is that the evidence intended to rebut the statutory presumption under Section 17 of the Adhiniyam ought to be clear and convincing evidence showing that what is presumed under the provision is not the real fact." (emphasis supplied) Heinz it becomes relevant to note does not detract from the basic principles enunciated in Sodhi Transport. It, of course, with reference to fiscal statutes holds that the degree of proof must be clear and convincing. From the material that was placed before the respondent authorities, this Court finds that a vehicle sales invoices-cum-delivery challan dated 24 March 1992 also existed. This invoice established a sale of the chassis by the revisionist to Motor and General Sales Limited Karnal. The vehicle was identified both by chassis number as well as engine number. On 5 June 1992 Motor and General Sales Limited Karnal drew up a sale certificate and delivery receipt in favour of Naseem Ahmad. These documents too identified the vehicle both by its engine and chassis number. Emphasis has been deliberately laid upon this aspect in order to indicate that the vehicle in que....