P VIJAYAKUMAR Vs. INTELLIGENCE OFFICER

JUDGEMENT

(1.) THE petitioner is challenging Ext.P10 order of the Commissioner of Commercial Taxes confirming penalty of Rs.75,800/- levied under Section 45A of the KGST Act for unaccounted sale of goods effected by the petitioner which led to evasion of tax. THE petitioner is a dealer in electrical goods and also plastic furniture. THE case of the Department is that the petitioner purchased plastic chairs from Nilkamal Plastics Ltd., Mumbai and sold the same to Holy Trinity School, Kanjikode in Kerala which was not accounted as local sales nor tax paid by the petitioner. THErefore, a penalty of Rs.75,800/- was imposed on the petitioner treating the entire transaction as unaccounted sales. THE petitioner s contention is that the petitioner acted as an agent of the manufacturer and there was no purchase and resale of the articles by the petitioner. On the other hand, the Department proceeded on the presumption that the petitioner purchased the articles in his own account and resold the goods to the school. THEre is also a finding by the authorities below that the manufacturer s ledger account shows direct sale to M/s.Vijaya Electricals, that is the petitioner s concern.

(2.) AT the time of hearing, counsel for the petitioner, relying on the invoice, lorry receipt and other documents produced, contended that the goods are directly sent by the Manufacturer to Holy Trinity School, Kanjikode. The petitioner s contention is that the transaction is an agency transaction and not a purchase and sale as assumed by the Departmental Officers. The Government Pleader on the other hand, contended that the petitioner s case of agency was not proved with any acceptable evidence. According to him the petitioner is a dealer in plastic chairs and sales are in his own account. On going through the impugned orders and other records I find that the petitioner has not produced any evidence to substantiate the claim of agency. Explanation 5 to Section 2(xxi) of the Kerala General Sales Tax Act give rise to a presumption of two sales even in the case of agency. The said section is extracted hereunder.