JUDGMENT P. SHANMUGAM, J. – Petitioner is a dealer in rubber and he is an assessee under the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act") as confirmed by the revisional authorities. 2. Petitioner's business premises were inspected of February 28, 1990. After examination of the account books revealed stock difference as shown below : (1) Raw rubber ... 3989.200 kgs. excess. (2) Scrap rubber ... 132.600 kgs. short. After giving an opportunity to the petitioner to explain the difference and not being satisfied with the reply, imposed a penalty of Rs. 13,000 under section 45-A(b) of the Act for the non-maintenance of true and complete accounts. The orders were confirmed by the Deputy Commissioner and the Board of Revenue. The original petition is against these orders. 3. The case of the petitioner is that they have explained the excess stock by their letter dated March 1, 1990 and subsequently filed affidavits from the parties stating that the owner of Sree Krishna Estate, Kottapuram had brought 3,896 kgs. of rubber to the shop on February 28, 1990 and after unloading the goods they left for lunch, and this fact was brought to the notice of the inspecting officers in their letter dated March 1, 1990, but the same was not taken into account totally by the authorities below. Learned counsel submits that the petitioner has discharged the burden by establishing that the excess stocks belong to the parties. It is further submitted that the department did not take into account the preponderance of probabilities in this case and the normal practice adopted in the business by allowing the parties to bring the goods and left their stock without any suspense account. It is further submitted that the Deputy Commissioner was not even aware of the furnishing of the affidavits and the letter of the petitioner dated March 1, 1990. Thus there is an apparent error on the part of the authority in appreciating the matter. 4. On behalf of the respondents, a detailed counter-affidavit has been filed. The case of the learned Government Pleader is that non-maintenance of true and complete accounts is proved. The attempt of the petitioner is only to mislead the authorities by producing some procured evidence which cannot be relied upon. According to him, the Branch manager of the petitioner-company was there at the time of shop inspection. The case of the learned Government Pleader is that non-maintenance of true and complete accounts is proved. The attempt of the petitioner is only to mislead the authorities by producing some procured evidence which cannot be relied upon. According to him, the Branch manager of the petitioner-company was there at the time of shop inspection. It is seen that the petitioner is issuing suspense slips for goods received. The last suspense slips issued at the time of inspection is admitted to be 534 dated February 23, 1990 and no suspense receipt thereafter during the time of inspection. The supporting affidavits were produced on March 27, 1990 after a lapse of one month after the inspection. The claim of 8 parties regarding the excess stock of 3,896 kgs., is not bona fide and contrary to their intimation to the effect that the goods belonged to Sree Krishna Estate. From the affidavits, it is seen that except in one item wherein one Poulose, Pandarakundyil, as managing partner of Sree Krishna Estate, the others claimed ownership in their individual capacity giving different addresses. It is further submitted that the burden is on the petitioner to establish that the excess quantity found at the premises of the petitioner does not belong to them and that they have not discharged the same. 5. I have heard the counsel and the Government Pleader. 6. In this case, we are concerned with the excess stock of raw rubber of 3,989.200 kgs. Compared to the raw rubber found short on that day, namely, 17,945.800 kgs., this excess stock is almost 25 per cent which is substantial quantity which had not been accounted in the account books. Therefore, the burden is on the petitioner to establish that this quantity did not belong to the petitioner. The case of the petitioner is that the raw rubber belongs to 8 parties, 7 of them claimed 500 kgs. each and the 8th party claimed 396 kgs. totalling to 3,896 kgs. The purchase bills were made on February 28, 1990 and February 29, 1990 towards this quantity of rubber. But this fact was not intimated to the first respondent in their letter dated March 1, 1990. The relevant portion of that letter is as follows : "At the time of inspection, we specifically brought to your notice that 3,896 kgs. The purchase bills were made on February 28, 1990 and February 29, 1990 towards this quantity of rubber. But this fact was not intimated to the first respondent in their letter dated March 1, 1990. The relevant portion of that letter is as follows : "At the time of inspection, we specifically brought to your notice that 3,896 kgs. of rubber brought to our premises by the owners of Sree Krishna Estate, Kottapuram have not been purchased as the party after unloading the goods in the shop had gone for lunch and that purchases would be effected and bill issued when the party returns and that too after verifying quality and fixing of rate." By March 1, 1990 they have already made the purchase bills. Therefore, the failure on the part of the petitioner in not intimating the purchase in their letter dated March 1, 1990 would belie the statement contained in the affidavits furnished on March 27, 1990. After having made independent bills for 8 persons on February 28, 1990 and February 29, 1990, that fact has not been stated in the intimation letter. When there are suspense slips available and issued to the quantity which are not billed, there is no reason why there is an omission to issue the suspense slip for such a large volume of rubber. Therefore, the stand of the first respondent that the intimation in the affidavits are after-thoughts and there is no acceptable reason for not issuing suspense slips, cannot be held to be an arbitrary view. Besides, when the claim of the whole quantity of 3,896 kgs. belongs to the owners of Sree Krishna Estate, the bills are shown in the separate names of 8 persons and different addresses were given excepting in one case. Therefore, taking into account the whole case, it is clear that the petitioner has not discharged the onus of establishing that the excess stock found does not belong to the petitioner. In this case, petitioner is not proving the negative. The existence of stock is admitted. The only question is proving the ownership of the goods. When the stock was found on February 28, 1990, there was no claim at the time of inspection. It was only on March 1, 1990, the next day, a letter was sent stating that it belongs to some other party. The existence of stock is admitted. The only question is proving the ownership of the goods. When the stock was found on February 28, 1990, there was no claim at the time of inspection. It was only on March 1, 1990, the next day, a letter was sent stating that it belongs to some other party. From the facts and circumstances of the case, it is clear that the petitioner has not discharged the burden cast upon him. 7. A Division Bench of this Court in Sudhi v. Intelligence Officer [1992] 85 STC 337 held as follows : "All that is necessary is that there should be some rational connection between the fact proved and the ultimate fact presumed and the inference of one fact from proof of another fact, shall not be so unreasonable as to be purely arbitrary. There should be a rational connection between that is proved and what is permitted to be inferred therefrom." On the explanation I, the Division Bench held that the burden is akin to that in a civil case, where the adjudication is made on preponderance of probabilities. Normally, he would be taken to have discharged the onus if in the absence of any material or proof by the department to the contrary, he could raise probabilities in his favour or point out circumstances, which could create doubts, the benefit of which can be given to him. 8. In this case, the petitioner had not produced and acceptable material or proof to the contrary. The material available on the record, namely, the shop inspection report, the suspense slips, and the failure on the part of the petitioner to explain the shortage on February 28, 1990 coupled with the discrepancies found in the materials adduced by the petitioner would only indicate that the petitioner has miserably failed to discharge the onus. 9. The Supreme Court in Mehta Parikh & Co. v. Commissioner of Income-tax [1956] 30 ITR 181; AIR 1956 SC 554 considered the question of failure to refer to the statements made in the affidavits. In the case before the Supreme Court, cash book of the appellant was accepted and entries therein were not challenged. The appellant filed affidavit of the parties to support his case. v. Commissioner of Income-tax [1956] 30 ITR 181; AIR 1956 SC 554 considered the question of failure to refer to the statements made in the affidavits. In the case before the Supreme Court, cash book of the appellant was accepted and entries therein were not challenged. The appellant filed affidavit of the parties to support his case. In the light of the department's failure to call for a cross-examination of the deponents, it was held that it was not open to the revenue to challenge the correctness of the cash book entries and the statements made by those deponents in their affidavit. The decision does not any way help the case of the petitioner in this case. The contents of the affidavit were considered but not accepted as one made for the purpose of the case. The evidence let in by the petitioner coupled with the other circumstances of the case would only strengthen the stand of the department as explained above. 10. It is true that the Deputy Commissioner is not correct in saying that the letter dated March 1, 1990 was not sent by the assessee. However, taking into account the letter and the averments made in the affidavit would only worsen the case of the petitioner, in the light of the inconsistent stand explained above. Since it is established that the petitioner has attempted to mislead the authorities and there is an attempt to evade payment of tax and the amount of commodity involved is huge, I do not find any illegality in the imposition of maximum penalty. The case of the department that the petitioner failed to maintain the correct and complete accounts for the year 1989-90 as required under section 27 of the Act is established. In the circumstances, no grounds are made out to interfere with the orders. Original petition fails and it is accordingly dismissed. Order on C.M.P. No. 5798 of 1996 in O.P. No. 3339 of 1996 V dismissed. Petition dismissed.