VAT Appeal No. 45 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH VAT Appeal No. 45 of 2010 Date of Decision: 19.8.2010 M/s Bhagwan Dass Chandgi Ram ....Appellant. Versus Deputy Excise and Taxation Commissioner (Appeals) and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. PRESENT: Mr. Aman Bansal, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1. This appeal has been filed by the assessee-appellant under Section 68 of the Punjab Value Added Tax Act, 2005 (in short “the Act”) against the order dated 4.12.2009 (Annexure A-3) passed by the Value Added Tax Tribunal (hereinafter referred to as “the Tribunal”) in Appeal (VAT) No. 274 of 2008-09, proposing to raise the following substantial questions of law:- “a) Whether the act on the part of the concerned designated officer cum Excise and Taxation Officer to make such huge addition by relying upon the statement of one person at the back of the assessee/appellant without giving any VAT Appeal No. 45 of 2010 -2- opportunity to cross-examine him, is justified? b) Whether the act on the part of the ld. Authorities not to summon the same person for cross-examination despite of specific request is justified and legally sustainable? c) Whether in the present case there is utter violations of principle of natural justice? d) Whether the impugned orders are legally sustainable in the eyes of law?” 2. Put shortly, the facts of the case are that the assessee filed returns for quarters ending June, 2006, September 2006, December 2006 and March, 2007 in the financial year 2006-07. On scrutiny of returns and the ICC data, it was found that certain returns were not correct and the turnover was suppressed to evade tax. The Designated Officer issued notice under Section 46 of the Act on 7.3.2007 to the assessee for producing the books of account and for appearance. The assessee did not appear before the Designated Officer despite various notices. On 19.9.2007, notice under Section 29(2) of the Act was issued for framing best judgment assessment for the financial year 2006-07 upon which Roop Narain, Proprietor appeared but failed to produce the books of account. On 11.10.2007 and 18.10.2007, Roop Narain appeared but did not produce the books of account. The dealer was informed that he had not deposited the purchase tax on wheat as per his liability. Thereafter, adjournments were being sought on one pretext or the other for framing assessment. For the quarter ending December 2006, the assessee had shown purchases of VAT Appeal No. 45 of 2010 -3- Rs.1,55,65,152/- from M/s Vikas Trading Co., Amritsar and availed ITC of Rs.6,22,607/- in the said return whereas M/s Vikas Trading Co. had shown no sales to the assessee in its corresponding return. The Assistant Excise and Taxation Commissioner, Amritsar-II was requested to verify the sales by that dealer who vide letter dated 28.3.2007 informed that as per the returns filed by M/s Vikas Trading Co., it had not made any sale to the assessee. Accordingly, notice dated 26.12.2007 was issued to the dealer for 8.1.2008. The tax, interest and penalty figures totalling Rs.18,62,873/- was conveyed to it based on detailed calculations. The Designated Officer vide order dated 11.1.2008 (Annexure A-1) held that the assessee was falsely claiming ITC to which it was not entitled to and imposed tax and interest at Rs.6,46,083/-. On appeal, the Deputy Excise and Taxation Commissioner (Appeals) vide order dated 30.5.2008 (Annexure A-2) upheld the order of the Designated Officer and dismissed the appeal. On further appeal, the Tribunal vide order dated 4.12.2009 (Annexure A-3) dismissed the appeal. Hence the present appeal. 3. We have heard learned counsel for the appellant. 4. The solitary argument raised by learned counsel for the appellant is that no reliance could be placed on the statement of the representative of M/s Vikas Trading Company made against the appellant without affording an opportunity to cross-examine the said person and, therefore, the impugned orders are untenable. 5. The only plank of the case of the appellant was that there were purchases from M/s Vikas Trading Company, Amritsar. In such a situation, it was incumbent upon the appellant to have proved the VAT Appeal No. 45 of 2010 -4- veracity and authenticity of the said transaction by examining its representative or leading any other evidence to prove payment against said purchases. It could not take the plea that opportunity to cross- examine the representative of M/s Vikas Trading Company had not been afforded to it especially when the burden was on the assessee to establish the genuineness of the transaction with M/s Vikas Trading Company, Amritsar. 6. The Tribunal had recorded the findings based on appreciation of evidence. The relevant findings of the Tribunal read thus:- “The counsel was told that for claiming ITC on his claimed purchases from M/s Vikas Trading, the onus lies on him to prove that he actually made these purchases. He was directed to give proof of any payment made to M/s Vikas Trading in the form of cheque etc. to which he responded that he does not have any such proof because the payments were made in cash. The Designated Officer concluded that M/s Bhagwan Dass Chandgi Ram was falsely claiming ITC to which he was not entitled and that it will be in the interest of justice and the revenue that he is made liable to pay purchase tax on these purchases of wheat totaling Rs.1,62,68,249/-.” 7. In view of the aforesaid findings which have not been shown to be perverse, no substantial question of law, as claimed, arises VAT Appeal No. 45 of 2010 -5- in this appeal. 8. The appeal is dismissed. (AJAY KUMAR MITTAL) JUDGE August 19, 2010 (MEHINDER SINGH SULLAR) gbs JUDGE