TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 131
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.... Transit Permits (TPs) at the exit check post. 3. This petition is filed under Section 81 of the VAT Act to challenge the assessment order dated 18.3.2010 (Annexure-IV) of the Superintendent of Taxes, Churaibari Check Post, Assam for the assessment year 2005-06, under Section 76(6), read with Section 76(7) of the VAT Act. Under the impugned order, tax was levied for goods carried by five trucks of the Transporting Company. The company paid the tax, interest and penalty for the goods in respect of two trucks and therefore, we are concerned here with levy on the goods carried by the other 3 trucks bearing Regn. No.AP-16/U 6287 (Gunny Bags), TR-02/1743 (Sheet Rubber) and TR-02/1620 (Sheet Rubber) respectively. 4.1 Previous to the impugned exercise, the first assessment was made on 31.12.2007 (Annexure-I), on account of non-furnishing of the endorsed T.Ps. at the exit check post of Assam Border, for goods carried by 13 trucks, as is mandated under Section 76(6) of the VAT Act. This was challenged by the transporter, where they contended that they be given the opportunity to rebut the legal presumption of tax evasion, drawn under Section 76(6) of the VAT Act. The specific case of the ....
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....ebuttable presumption. The transporter specifically distanced themselves from the truck No.AP-16/U 6287, laden with gunny bags and said that they have no connection with that truck and the goods. Therefore, levy of tax, interest and penalty is unjustified. 8. The tax liability for the other two trucks i.e. TR-02/1743 and TR-02/1620 which carried raw rubber sheet, was contended to be unjustified in the hand of the transporter under the presumptive clause, as the concerned laden trucks were stolen during transit, for which the FIR was filed by the transporter and the trial in the criminal case i.e. G.R. Case No.955/2005 is now in progress in the Court of the learned Chief Judicial Magistrate, Agartala, for the missing goods and trucks against the charge sheeted accused. 9. The Assam Board of Revenue considered the above projection and found that the truck bearing Regn. No.AP-16/U 6287, from which the transporter had distanced themselves, can't absolve them from the liability of tax under the presumptive clause, as the T.P. for the goods in this truck was issued at the entry check gate, in the name of the transporter. Moreover on account of the failure of transporter to produce proo....
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....s that when the transporter has no connection with this particular truck, it is well neigh impossible for them to rebut the presumption drawn against them and therefore, it is argued that pursuant to the direction issued by the Commissioner of Taxes on 9.2.2010, the quasi judicial authority should have applied his mind to the documents produced at the entry check gate for the gunny bags carried by the truck, to determine whether the petitioner has any connection at all with the goods or the truck No.AP-16/U 6287. 10.5 The transporter submits that the normal practice is to produce all the supporting documents at the entry check gate for the goods carried by any truck and if a particular goods vehicle is not being operated by a transporter, they will have serious difficulty to rebut the legal presumption, drawn against them. Therefore it is argued that the connection of the truck with the transporter will have to be verified by the Assessing Authority on the basis of the documents produced at the time of entry of the truck to Assam, at the entry check gate at Churaibari. 11.1 Representing the Revenue, Mr. B. Choudhury, the learned standing counsel submits that unless the legal pres....
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....o establish that the goods are transported out of the State, through the exit check gate. In such event, a presumption can be recorded that the goods were sold inside the State with the help of legal presumption. In that situation tax becomes payable by the transporter unless he rebuts the legal presumption, with cogent material. 14. For the sheet rubber, carried in two trucks, an FIR was lodged within a few days of the loaded goods being dispatched from Agartala and the charge sheet of the East Agartala P.S. Case No.164/2005 reflects that 6/7 accused are charged for misappropriation of the sheet rubber, valued at Rs. 13,89,750/- approx, which matches the value of goods, in the assessment order. The liability under the presumptive provision of Section 76(6) & (7) of the VAT Act is, inter alia, can be drawn against the driver, the person in-charge of the goods vehicle or the transporter and therefore, without conclusion of the trial in the G.R. Case No.955/2005 progressing now in the CJM's Court, burdening the transporter with the tax liability under the presumptive section, can't be said to be a bonafide discharge of power by the Assessing Officer. Unless the driver or the person ....
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....presumption is conclusive against the petitioner. After all, a fair and reasonable opportunity must be afforded to the party to show that actual fact is not as presumed and this is possible only when, all the documents carried by the truck No.AP-16/U 6287, are furnished to the transporter. 17. In so far as the two missing trucks are concerned, if in fact, the driver or the in-charge of the vehicles were responsible for misappropriating the loaded sheet rubber, carried in the two missing trucks (TR-02/1743 and TR-02/1620), to burden the transporter with tax liability in such situation will be an unwarranted exercise. The appropriate stage at which the liability of the transporter can be assumed here is when there is absolvement of the driver and the other accused through acquittal, in the G.R. Case No.955/2005. Otherwise on account of the misdeeds of the driver and his cronies, the transporter may be wrongly subjected to tax, whereas the target of the authority should be the persons, who are actually responsible. 18. In view of the above discussion, we set-aside the assessment order dated 18.3.2010 (Annexure-IV), passed by the Superintendent of Taxes, Churaibari Check Post, in res....