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234 Goods & Services Tax Cases - Reports [Vol. 1 delayed. The explanation put forth by the assessee for delayed movement is that there was non-availability of the trucks at the time the goods were earmarked to them by the truck union while issuing the goods receipts. There is nothing which prevented the assessee-company from maximizing the exhaustion of its exemption limit to pay tax by 26-3-2007 provided there were genuine purchase orders and goods available for sale. The authorities, merely on account of delayed movement of goods, in the face of the explanation put forth by the assessee, and in the absence of any material on record, in our considered opinion, cannot draw the only irresistible inference that there was an attempt to evade payment of tax. The assessing authority has based its finding of attempt to evade tax simply on the basis of its presumption and suspicion. It is well-settled that strong suspicion, strange coincidences and grave doubts cannot take place of legal proof to sustain a finding of fact (State of Kerala v. M.M. Mathew [1978] 4 SCC 65). Therefore, the delayed movement of goods by itself is not sufficient to conclude that there was an attempt to evade payment of tax or the bills/sale invoices were ante dated. Hence, the findings recorded by the Tribunal/authorities under the VAT Act are based on no evidence and are liable to be set aside. Accordingly, the rephrased question of law No. (iii) is answered in favour of the appellantassessee and against the revenue. In view of the fact that question of law No. (iii) has been answered in favour of the assessee, we do not consider it necessary to decide the remaining proposed questions of law. Accordingly, the appeal(s) are allowed and the impugned order dated 3-10-2008 (Annexure A/8) passed by the Tribunal is set aside and the appellantassessee is held entitled to the refund of amount of penalty deposited, if any. ■■ GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 110 A B C D E F G
2010] Maruthi Estate v. Appellate Dy. CCT (Mad.) 235 A B C D E F G [2010] 1 GST 235 (MAD.) HIGH COURT OF MADRAS Maruthi Estate* v. Appellate Deputy Commissioner of Commercial Taxes T.S. SIVAGNANAM, J. W.P. (MD) NO. 2678 OF 2009 SEPTEMBER 30, 2009 APPEAL - Period of limitation - In case of assessee, assessment order was passed on 27-10-2004 - Assessee’s case was that said order was served on it only on 18-11-2004 - Thereupon, assessee filed appeal on 17-1- 2005 - Since there was delay of 27 days in filing appeal, an application for condonation of delay was filed - Said application was kept pending for around 3½ years and thereafter it was rejected on ground that assessment order was served on 27-10-2004 itself and, thus, there was a delay of 52 days which was beyond condonable period - On instant petition, it was seen from records that in acknowledgement, dated 27- 10-2004, name and designation of person receiving copy of assessment order were not available and, further said acknowledgement did not bear seal of assessee-company - It was also noticed that there was no endorsement by person who delivered notice of order as required by Explanation to rule 52(1) - Whether, in aforesaid circumstances, it could be concluded that order of assessment was served upon assessee only on 18-11-2004 - Held, yes - Whether, further, in view of fact that appeal papers were already pending before first respondent for more than 3½ years, it was to be held that it was a fit case where delay was to be condoned and matter was to be directed to be heard on merits - Held, yes [Section 31 of the Tamil Nadu General Sales-tax Act, 1959, read with rule 52 of the Tamil Nadu General Sales-tax Rules, 1952] FACTS The case of the assessee was that the order of the assessment, dated 27-10-2004, had been served on it only on 18-11-2004 at its estate office. The assessee filed an appeal on 17-1-2005 disputing the tax liability. Since there was a delay of 27 days in filing the appeal, an application for condonation of delay was filed. The said application was kept pending for around 3½ years and thereafter it was rejected on ground that the order *In favour of assessee. GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 111
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