POONAMS INTERIOR AND DECORATORS v. STATE OF KARNATAKA.
2009-09-08
ARAVIND KUMAR, D.V.SHYLENDRA KUMAR
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ORDER ARAVIND KUMAR, J. - The assessee is carrying on the business in furniture and is registered both under the Karnataka Sales Tax Act and Central Sales Tax Act. The facts leading to filing of this revision petition are that the petitioner is a dealer in furniture and has effected purchase of wooden furniture from small time business persons who carry to its doorsteps and effected sales to the petitioner after issue of invoice and declaration in form 32 and payments to the suppliers are made in cash. The assessing authority noticed that the petitioner's place of business had been visited by the intelligence authorities which had noticed that the petitioner had made purchases from certain dealers and petitioner did not have any documentary proof of having made payment to the above dealers and those dealers were bogus units, non-existent and none of those dealers was having any manufacturing units at the business premises and accordingly the assessing authority after issue of notice under section 12A and thereafter under section 3C of the KST Act, concluded the assessment proceedings by holding that the assessee had failed to prove that the goods have suffered tax in the hands of the dealers and accordingly demand was raised on the petitioner as per order dated February 25, 2003. The assessee being aggrieved by the same filed a first appeal before the Joint Commissioner of Commercial Taxes (Appeals), Bangalore City Division I, Bangalore, in KST. AP. No. 01/2004-05 wherein the contention raised by the petitioner was that the assessment order dated February 25, 2003 was based on the report of the intelligence authorities and subjected to tax certain turnovers and the said intelligence report had not been furnished to the assessee and also on the ground that declaration in form No. 32 had been issued by those dealers who had supplied goods to the petitioner, which revealed that on the first sales, the tax had been levied. On examination of these contentions by the first appellate authority, the first appellate authority has come to the following conclusion : "The appellant is in the habit of purchasing this furniture at his door step, the sellers who come along with the furniture also issue sale invoices on the spot along with form 32 declarations. The sale invoices issued by these sellers are verified.
The sale invoices issued by these sellers are verified. It is noticed that these sellers have not collected any taxes in the bills. The appellant in the grounds of appeal has stated that the sellers are the manufacturers also, but these manufacturers and sellers have issued form 32 declarations wherein it is stated that they are the second sellers. The manufacturers cannot be second dealers and thus it is proved beyond doubt that these declarations are not genuine. The appellant, who is a reputed dealer in furniture, cannot ignore all the details. Further more, furniture to the extent of lakhs of rupees cannot be purchased at the doorsteps of the dealer, that too without recording any details of such purchases in the books of account. The appellant has failed to produce any documentary evidence regarding the payments made to these six dealers who have sold furniture worth Rs. 24,82,900. These discrepancies and short comings are not proved by the appellant. It is contended by the appellant that the assessing authority has not proved that the sellers are bogus dealers. The very fact that the small time manufacturers of furniture when bring the furniture to the dealers' place of business, issue sale invoice on the spot and also form 32 declarations, wherein they state that they are the second dealers is quite contrary to the stand taken by the appellant. It is also contended that the assessing authority did not provide a copy of the inspection report. The inspection report is based on the statement of the appellant himself made before the inspecting authority, a copy of which is retained by the appellant. Moreover, the appellant did not respond to the proposition notice and the endorsements issued by the assessing authority. Had the appellant approached the assessing authority with a request to provide a copy of the inspection report, the same could have been made available. In fact the appellant had already retained a copy of his own statement made before the ACCT (Int) - VIII, South Zone, Bangalore.
Had the appellant approached the assessing authority with a request to provide a copy of the inspection report, the same could have been made available. In fact the appellant had already retained a copy of his own statement made before the ACCT (Int) - VIII, South Zone, Bangalore. Hence the contentions raised by the appellant are devoid of merit and the appellant has failed to prove before the assessing authority and the appellate authority regarding the payments made to those six dealers who have sold furniture to the appellant." On the aforesaid finding of fact the first appellate authority dismissed the appeal by order dated September 14, 2004, which is at annexure D and upheld the order of the assessment. The assessee being further aggrieved by the order of the first appellate authority dated September 14, 2004 preferred an appeal in S.T.A. No. 164/2005 before the Karnataka Appellate Tribunal at Bangalore, reiterating the contentions raised before the first appellate authority, viz., the following grounds were raised : 1. No opportunity was given. 2. No Intelligence report was made available or supplied to him to file his objection. Both these contentions were examined by the Appellate Tribunal with reference to the assessment records and it was found by the Tribunal that the assessing authority in fact had issued pre-assessment notice which was available in the assessment records to which assessee had not filed any objection and only thereafter assessment was concluded on February 25, 2003. It was noticed by the Tribunal that the appellant therein had not filed any objections to the above proposition notice either in writing or orally and it further observed that in the event the appellant was in need of the copy of the intelligence report as contended before it, nothing prevented the assessee to have sought for such report at the first available opportunity and having remained silent and not rebutted the ground raised in the proposition notice, the assessee would not be justified to raise such contention before the Tribunal and in conclusion it held that the petitioner cannot take advantage of its own lapses and now plead that an opportunity was not given after lapse of several years that too, after having received the proposition notice and not having filed objections to the same. The Tribunal on examination of the said contentions did not find merit in the appeal and accordingly dismissed the same.
The Tribunal on examination of the said contentions did not find merit in the appeal and accordingly dismissed the same. Aggrieved by the same the assessee has filed this revision under section 23(1) of the Karnataka Sales Tax Act, 1957 read with section 8A of the KAT Act, 1956 and reiterates the contentions raised before both the appellate authorities. We have heard Sri Hema Kumar, learned counsel appearing for Sri R. V. Prasad, M/s. Vasan Associates regarding admission. Sri Hema Kumar, learned counsel for the petitioner, reiterates the contentions raised before the appellate authority and further contends that the assessee was under the bona fide impression that form No. 32 submitted by the suppliers/dealers of the furniture who had supplied furniture goods to the petitioner have paid the tax and they could not have been doubted by them and accordingly they have made the statement even before the intelligence authority by producing copies of the said form No. 32 both before the assessing authority as well as the intelligence authority, who recorded the statement. It is also contended that had the copy of the intelligence report been furnished to the assessee they would have rebutted the same. The undisputed fact is that even in spite of the proposition notice having been issued and served on the assessee/petitioner, he has not chosen to file any objections to the said proposition notice nor has he sought for obtaining copy of the intelligence report, which is now sought to be made an issue in this revision petition. The assessee, viz., the petitioner having submitted himself before the authorities and contended on merits with regard to the submission of form No. 32, now cannot, at the revisional stage contend that by non-submitting of the intelligence report the right of the revision petitioner is prejudiced, more particularly, when the opportunity was available at all points of times and not made use of. In fact even on merits with regard to form No. 32, the assessing authority has found that he himself has visited and has investigated the genuineness of the dealers who is said to have issued form No. 32 filed by the revision petitioner and after making cross-verification has come to the conclusion that they are bogus in nature and no such dealers are available at the addresses mentioned in the invoices. In fact the discussion made by the Tribunal at paragraph Nos.
In fact the discussion made by the Tribunal at paragraph Nos. 6 to 9 is a complete answer by itself to the grounds now urged by the revision petitioner. Hence, we are of the view that this is not a fit case to admit the revision petition and accordingly revision petition is not admitted and is dismissed at the stage of admission. No costs.