High Court · 2012

(A.K.Goel, CJ) This petition seeks quashing of order dated 08.10.2012 passed by the Assam Board of Revenue under Section 4(2) of the Assam Value Added Tax Act, 2003 declining to interfere with order of the revisional authority (Additional Commissioner of Taxes) dated 04.08.2012 and the assessment order dated 09.09.2011. Case of the petitioner assessee is that goods transported from Bangalore via Ass am for NHPC Project, Subansiri, Dollungamukh (Arunachal Pradesh) did not attract any tax in the State of Assam. The said goods actually were delivered in the St ate of Arunachal Pradesh. Value of the goods was Rs.77,63,000/-. The goods comp rise of Hydraulic Excavator PC 300-7, 6.5M Boom/2.2 M ARM/1.6 Cu.M Bucket (Machi ne with accessories) bearing Engine No.20285090L Serial No.NL 31635. For trans porting the goods the transit pass was obtained but there was some error in desc ription therein. There was, however, no attempt to evade tax in the process of t ransportation of the said goods, but the assessing authority initiated proceedin gs to levy tax and penalty on that account, apart from levying tax and penalty f or transportation of certain unaccounted goods for which demand of Rs.1,93,104/- was raised. In addition to the tax and penalty for alleged unaccounted goods, i t was wrongly alleged that turnover of excavator has also escaped assessment for which tax of Rs.4,04,762/- with penal interest and penalty were recoverable. The petitioner preferred revision. In the grounds of revision, inter-alia, follo wing grounds were urged :- (cid:28)3. Bucket (Machine with accessories) bearing Engine No.20285090L Serial No.NL 3163 5 booked by M/S. L & T Komastu Ltd., Byatarnpura, Bangalore (Karnataka) for dest ination to the consignee, M/S Shakti Commodities Pvt. Ltd., NHPC Project, Subans iri, Dollongmukh (Arunachal Pradesh) having been dispatched in two separate vehi cles bearing Trailer No.TN-28/AH-0900 and Vehicle No.AP-31/X-5405 and the same h aving been delivered to the said consignee also on 30.05.2011and 6.06.2011 respe ctively, the Ld. Superintendent of Taxes was not justified in assessing the valu e of any imaginary excavator in the hands of the petitioner arbitrarily on presu mption that the petitioner might have sold the goods (excavator) in Assam and th at the petitioner attempted to get the TP endorsed in a fraudulent way and etc. without considering that no such sale was made by the petitioner in Assam. In th at view of the matter, levy of tax, interest and penalty under Section 76(9) of the AVAT Act as made in the assessment order is liable to be deleted. (cid:29) (cid:28)7. 2011 in the Transit Pass No.TP 1043618BOX dated 27.05.2011 in place of the corre ct Invoice No.911100446 (in nine digits) dated 13.05.2011 being an apparent mist ake committed by the Boxirhat Check Post Authority issuing the said Transit Pass , it was most improper on the part of the Ld. Superintendent of Taxes, Mr. R. Ch oudhury to draw adverse inferences against the petitioner blindly without making any corss verification from the Boxirhat Check Post Authority issuing the said Transit Pass and penalize the petitioner by making an arbitrary assessment on an untenable presumption in the absence of any material or evidence to prove or sh ow that excavator had in fact been sold by the petitioner within Assam. In that view of the matter, the impugned order of assessment made being wholly without j urisdiction is liable to be struck down. (cid:29) (cid:28)11. mmitted by the authorities of Entry Check Post at Boxirhat in the matter of issu ing TP1043618BOX dated 27.05.2011 by inserting incorrect particulars therein, th ere was no justification on the part of the Ld. Superintendent of Taxes, Mr. R. Choudhury to make a mountain out of a mole for covering his own lapses and negli gence instead of making a cross-verification of the facts from the authorities o f the Boxirhat Check Post. Hence, it is a fit case for quashing the entire proce For that the whole episode having arisen from the inadvertent mistake co For that recording of Invoice No.91110046 (in eight digits) dated 13.05. edings initiated and completed by the Ld. Superintendent of Taxes on mere techni calities and unfounded presumption. (cid:29) The revisional authority dismissed the revision petition with the following obse rvations :- (cid:28)The petitioner on the other hand, submit that the goods covered by the Transit Pass No.TP1043618 BOX and LTP No.1048408 DGD had factually crossed Narayanpur Ch eckgate on 05.062011 in the vehicle No.AS-01-DL 351 C but without obtaining endo rsement from the tax authority of Narayanpur Checkgate. However, after receiving notice for surrendering the endorsed Transit Pass by the entry Checkpost author ity, he obtained change in the vehicle No. in the LTP No.1048408 DGD by making f alse statement and again produced Transit Pass for endorsement on 29.08.2011. S ince, the petitioner transporter has resorted to falsehood as per his own admiss ion and in view of the fact that Transit Pass was produced for obtaining endorse ment without actually carrying the goods on 29.08.2011 with the driver/ persons in-charge of the vehicle, the assessment of tax/penalty and interest of Rs.16,23 ,298/- the goods not found in accordance with the Transit Pass by the concerned Superintendent of Taxes is found legal and justified. (cid:29) Against the above order the petitioner preferred an appeal which was also dismis sed without considering the contention of the petitioner that in the process no tax was attracted and there was no evasion of tax. We have heard learned counsel for the parties. It is apparent from the impugned order of the appellate authority that contentio n of the petitioner that there was no evasion of tax as no tax was attracted in the transaction has not been gone into by the said appellate authority on accoun t of which its order is vitiated. Accordingly, we set aside the appellate order passed by the Board of Revenue and remand the matter to the said authority for a fresh decision for adjudication of the issue raised by the petitioner in accord ance with law. The petitioner may appear before the above authority for further proceedings on 14.12.2012.