(Prayer: These STRPs are filed under Section 65 (1) of the Karnataka Value Added Tax Act, praying to allow the appeal by setting aside the orders passed by the Karnataka Tribunal Bangalore in STA No. 3633 to 3639 of 2013 dated 23.03.2015, confirming the order of Joint Commissioner of Commercial Taxes (Appeal) Gulbarga, Div., Gulbarga, in appeal no. KVAT/AP-06/13-14 dated 31.05.2013 and the reassessment order passed by Dy. Commissioner Commercial Taxes (Audit)-2 DVO, Gulbarga dated 20.03.2013 - All for the Seven Tax periods in the year 2005-06 passed under the Karnataka Value Added Tax Act, 2003, in the interest of justice and equity.)

S. Sujatha, J.

1. These revision petitions are filed by the assessee challenging the common judgment passed by the Karnataka Appellate Tribunal, Bangalore in Appeal Nos.3633-3639 of 2013.

2. Briefly stated the facts are:

the petitioner is a registered dealer under the provisions of the KVAT Act, 2003 (the Act for short). It transpires that the petitioner had purchased iron and steel from M/s Huda Traders Moratagi, in the months July 05, October 05, January 06 - March 06 and claimed input tax credit amounting to Rs.5,24,283/- in its monthly returns. The prescribed authority exercising the powers under Section 39(1) of the Act concluded reassessment proceedings and disallowed the input tax credit claimed by the petitioner in respect of the goods - iron and steel, purchased from M/s Huda Traders Moratagi, since the selling dealers were absconding and were involved in bill trading. The Prescribed Authority also levied penalty under Section 72(2) of the Act.

3. Being aggrieved by the reassessment orders, the petitioner preferred First Appeals before the Joint Commissioner of Commercial Taxes (Appeals), Kalaburagi. The First Appellate Authority confirmed the orders passed by the Prescribed Authority against which appeals were preferred by the assessee before the Karnataka Appellate Tribunal, Bangalore. The Tribunal by common Judgment dismissed the appeals.

4. Aggrieved by the said common judgment passed by the Tribunal, the assessee has filed the above revision petitions.

5. The learned counsel appearing for the petitioner contended that the petitioner purchased goods from a registered dealer, M/s Huda Traders Moratagi who had issued tax invoices as per the procedure prescribed under the Act. The prescribed authority without providing adequate opportunity for the petitioner to put forth his explanation to the proposition notice, proceeded to pass the reassessment orders, denying the input tax credit claimed by the assessee. The tax invoices were produced before the First Appellate Authority. However the First Appellate Authority, without considering the same, confirmed the order of the Prescribed Authority which has been affirmed by the Tribunal without proper analysis of the case. It is further contended that the petitioner is a registered dealer and had purchased the goods from a registered dealer against the tax invoices paying the tax amount and if there is any default on the part of the selling dealer in not remitting the tax collected to the Government, it is for the authorities to initiate proceedings against the defaulting dealer and not to disallow the input tax credit as claimed by the assessee. The learned counsel appearing for the assessee has placed reliance on the decision of MILANO PLYWOOD SUPPLIERS vs STATE OF KARNATAKA (2014(80) KLJ 206).

6. Sri. Syed Habeeb, learned Addl. Govt. Adv. Appearing for the revenue justifying the orders passed by the Tribunal as well as the authorities would contend that the assessee has purchased the goods from a bogus or non-existent dealer. Despite several opportunities provided to the assessee neither the books of accounts nor tax invoices were produced to establish that the selling dealer was a genuine registered dealer. It is pointed out that the assessee had filed xerox copies of tax invoices before the First Appellate Authority. A duty is cast upon the petitioner/assessee to prove that the selling dealer has remitted the tax amount collected to the State Government. The burden of proof lies on the assessee in terms of Section 70 of the Act. The assessee having failed to discharge the same, cannot complain against the authorities for disallowing the input tax credit on the tax amount not remitted to the State Government.

7. We have given our anxious consideration to the rival submissions made at the bar and perused the material on record.

8. It is noticed that the assessing officer/prescribed authority has visited the business premises of the dealer on 6.2.2013 on the assignment note issued by the Commissioner of Commercial Taxes, Bangalore. No books of accounts and tax invoices were produced before the assessing authority despite sufficient opportunity provided. It is also pertinent to note that an inspection report of the Joint Commissioner of Commercial Taxes, (Enforcement), Gulbarga is also available on record wherein it is categorically stated that the assessee had purchased the goods from M/s Huda Traders, Moratagi and Sri Hari Traders, Moratagi and the said dealers were involved in bill trading and are absconding.

9. We have also noticed that the Tribunal after analysing the orders passed by the authorities in terms of Section 70 of the Act and following the Judgment of this Court in the case of M/s MICROQUAL TECHNO PRIVATE LIMITED vs ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES, ZONE 1, BANGALORE ((2012)52 VST 362 (Kar)) and M/S PACKWELL INDUSTRIES vs THE STATE OF KARNATAKA (STRP Nos.1/2011 & 321 to 347/2012 disposed of on 20.7.2012) dismissed the appeals.

10. It is apposite to refer to Section 70 of the Act which reads thus:

"70. Burden of proof:

(1) For the purposes of payment or assessment of tax on any claim to input tax under this Act, the burden of proving that any transaction of a dealer is not available to tax, or any claim to deduction of input tax is correct, shall lie on such dealer".

A reading of this provision makes it clear that the burden lies on the assessee to establish that the claim to deduction of input tax is correct.

11. This Court in the Judgment of Microqual Techno Private Limited (supra) has held thus:

"the assessee producing the invoices which he knows to be not genuine in support of his claim of input tax refund on the basis that he had paid input tax is a case of evasion of tax. In this case also the appellant has produced the un-signed purchase statement not the valid tax invoices and the books of accounts to claim the input tax even though the selling dealers has not paid the taxes to the Government and the investigations have proved that they are non-existing dealers. By obtaining the registration number and not doing the business as per provisions of law defeats the claim of the appellant that he has discharged the burden of proof in support of the input tax claimed".

12. In the Judgment of Packwell Industries (supra), it is held thus:

"Further, it is clear from the records that the petitioner firm has not produced any material to show that the dealers with whom the petitioner has made transactions have remitted the tax collected from him though the petitioner has been making transaction with the said firms for the last more than three years. In order to gain the input tax the petitioner has produced the bogus tax invoices".

13. From the above judgments, it is clear that the burden lies on the petitioner to establish that the dealers from whom the petitioner had purchased the goods have remitted the tax collected to the Government. Mere obtaining the registration number by the selling dealers would not suffice to claim input tax credit unless the petitioner has discharged the burden of proof in support of the input tax claimed. No input tax credit could be allowed on the basis of the photostat copies of tax invoices. Availing of input tax credit on photostat tax invoices/bogus invoices in the absence of selling dealer remitting the taxes to the Government and the investigations providing that they are non-existing dealers amounts to violation of the provisions of the Act and attracts levy of penalty under Section 72(2) of the Act.

14. Given the circumstances, the judgment in the case of Milan Plywood Suppliers (supra) relied on by the petitioner is not applicable to the facts of the present case.

15. The order passed by the Tribunal is justifiable and does not call for any interference by this Court. We are of the considered opinion that no question of law arises for consideration in these petitions. Accordingly revision petitions are dismissed.