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Vijay Lal Gupta v. The Trade Tax Commissioner U.P., Lucknow - SALES/TRADE TAX REVISION DEFECTIVE No. 416 of 1999  RD-AH 2669 (2 February 2006)
TRADE TAX REVISION NO.(416) of 1999.
Vijay Lal Gupta, Garh Sirmaur, Rewa, U.P. Applicant
The Commissioner, Trade Tax, U.P., Lucknow. Opp.Party.
Hon'ble Rajes Kumar, J.
Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 14th January, 1999 relating to the assessment year 1992-93.
The applicant is owner of Truck No. 17-A/1815. The driver of the truck Sri Moinuddin had obtained Form 34 no.1387 dated 16.1.1993 from Chaukhata check post which was to be surrendered at the exit check post. The goods was coming from Madhya Pradesh and was going to Bihar. Admittedly, the said Form 34 could not be surrendered at the exit check post; therefore, penalty proceeding under section 15-A (1) (q) of the Act was initiated. Before the authority concerned, the applicant appeared and submitted that due to ignorance of the driver, Form 34 could not be surrendered. It was further submitted that the goods loaded in vehicle no. MP-17/1815 reached to the destination and the goods was delivered to the party concerned. In support of his claim that the goods had crossed State of U.P. and had been received by the consignee M/S Tirupati Enterprises, Patna, as per builty of Bhagirathi Road Lines, filed various evidences, namely, acknowledgement of M/S Tirupati Enterprises, Panta on the back of the builty, cash memo for purchase of the diesel, receipt of payment of road tax at Ballia, receipt of payment of bridge tax of Bihar Rajya Pul Nirman, Limited, receipt of road tax issued by the Parivahan Vibhag, Bihar Government and toll tax receipt. Assessing authority levied the penalty on the ground that the Form 34 could not be surrendered at the exit check post. First appellate authority rejected the appeal. Applicant filed second appeal before the Tribunal. Tribunal by the impugned order, rejected the appeal.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that admittedly, the said form 34 could not be surrendered at the exit check post, but Section 28-B of the Act raises a rebuttal presumption and same can be rebutted by adducing the evidences and in case, if it is proved that the goods had crossed State of U.P. the presumption stand rebutted and no penalty under section 15-A (1) (q) of the Act can be levied. He submitted that though the necessary evidences have been filed before the check post authority to prove that the goods had crossed the State of U.P. and had been delivered to the consignee, but such evidences have not been considered by the Tribunal and the Tribunal has illegally confirmed the penalty merely on the ground that the said Form 34 could not be surrendered at the exit check post. Learned Standing Counsel produced the record and submitted that for non-surrender of Form 34 at the exit check post, penalty has been rightly levied.
Having heard the learned counsel for the parties, I find substance in the argument of the learned counsel for the applicant.
Perusal of the record shows that necessary evidences were adduced before the check post officer to prove that the goods had crossed the State of U.P. and had been delivered to the consignee, but the same have not been considered by the Tribunal and the penalty has been sustained merely on the ground that the Form 34 has not been surrendered at the exit check post. In my view, the order of the Tribunal is illegal and cannot be sustained. Section 28-B of the Act reads as follows:
Section 28-B- Transit of goods by road through the State and issue of transit pass.
When a vehicle coming from any place outside the State and bound for any other place outside the State, and carrying goods referred to in sub-section (1) of Section 28-A, passes through the State, the driver or other person incharge of such vehicle shall obtain in the prescribed manner a transit pass from the officer-in-charge of the first check post or barrier after his entry into the State and deliver it to the officer in charge of the last check post or barrier before his exit from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person-in-charge of the vehicle.
Provided that where the goods carried by such vehicle are, after their entry into the State, transport outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State shall be on the owner or person-in-charge of the vehicle.
Explanation.- In a case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purposes of this Section, be deemed to be the owner of the vehicle."
Section 28-B of the Act came up for consideration before the Apex Court in the case of M/S Sodhi Transport Co. Versus State of U.P. reported in 1986 UPTC 721 in which the Apex Court held that Section 28-B of the Act is a machinary provision and has been introduced to check the evasion of tax. It has been further held that Section 28-B of the Act raises a rebuttal presumption and in case, if by the evidences, it is proved that the goods had crossed State of U.P. and have not been sold within the State of U.P., the presumption stand rebutted. Thus, necessary evidences, which have been adduced by the applicant, has to be examined by the Tribunal to decide whether the goods had crossed the State of U.P. or not. Perusal of the impugned order shows that necessary evidences have not been considered. Thus, the order of the Tribunal is vitiated and is liable to be set aside.
In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observations made above expeditiously.
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