JOSE PALLISSERY Vs. ADDITIONAL SALES TAX OFFICER CHALAKKUDY

JUDGEMENT

(1.) THE petitioner is a registered dealer under the provisions of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act" ). By exhibit P1 notice the first respondent, the Additional Sales Tax Officer, had proposed to levy penalty of Rs. 4,000 under section 45a of the Act and the petitioner was called upon to file objections, if any. THE allegation was that certain inter-State purchases made during the year 1982-83 under declaration forms were omitted in the accounts. Exhibit P2 is the objection wherein the petitioner has totally denied the alleged transactions. Exhibit P3 is the order passed by the first respondent levying penalty as proposed. Being aggrieved by the said order, a revision was filed as provided under section 45a (3 ). While confirming the order levying penalty the Deputy Commissioner reduced the penalty to Rs. 3,000 as per exhibit P4 order. Exhibits P3 and P4 orders are challenged in this writ petition.

(2.) THE contention of the petitioner are two-fold. (1) THE alleged inter-State purchases having been totally denied the petitioner is not liable to pay the penalty. (2) THE petitioner had not been granted an opportunity to cross-examine the dealers from whom the inter-State purchases were allegedly made.

(3.) BY reason of the explanation, the burden, no doubt, is on the assessee to prove that the alleged transactions of purchase are clandestine and that the declaration forms are not genuine. It can be said that the first respondent-assessing authority has discharged the initial burden by the reason of the availability of declaration forms which is sufficient enough to create presumption as to the clandestine transactions of purchase. Such presumption can be rebutted by the assessee if he is able to succeed in "proving a preponderance of probability". The Supreme Court while dealing with discharge of burden under section 105 of the Evidence Act observed in State of U. P. v. Ram Swarup AIR 1974 SC 1570 as below : " That is to say an accused may fail to establish affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. . . . . The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accrued to show, as in a civil case, that the preponderance of probabilities is in favour of his plea. " In Rabindra Kumar Dey v. State of Orissa AIR 1977 SC 170, the Supreme Court further observed : " It so true that under section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. " Nevertheless the petitioner did not come forward to prove his case by pointing out preponderance of probabilities. Further no circumstances which would create doubt as to the allegations made by the assessing authority had been proved. Mere filing of an objection raising certain assertions without any proof will not be sufficient in law.