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M/S RAJEEV KUMAR JAIN versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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M/S Rajeev Kumar Jain v. State Of U.P. & Others - WRIT TAX No. 1817 of 2006 [2007] RD-AH 11361 (6 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.1817 of 2006

M/s Rajeev Kumar Jain v. State of U.P. and others

And

Civil Misc. Writ Petition No.1844 of 2006

Sri A.K.Jain @ Mukesh Kumar Jain v.

State of U.P. and others

Hon'ble R.K.Agrawal, J.

Hon'ble Bharati Sapru, J.

(Delivered by R.K.Agrawal, J.)

In both these writ petitions filed by Rajeev Kumar Jain being Civil Misc. Writ Petition No.1817 of 2006 and A.K.Jain being Civil Misc. Writ Petition No.1844 of 2006, the petitioners have challenged separate seizure orders dated 22.11.2006 passed by the Assistant Commissioner, Trade Tax, Mobile Squad, Etawah, under Section 13/13A of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") whereby the silver goods have been seized and an option has been given to get it released on furnishing cash security to the extent of three times of tax payable, treating it to be inter-State sales. The seizure orders have been passed in the name of M/s Raghunath Das Prahlad Das Saraf, HUF, Chowk Bazar, Mathura (hereinafter referred to as "the Mathura dealer").

Briefly stated, the facts giving rise to the present petitions are as follow:-

According to both the petitioners, they purchased silver jewellery from M/s Raghunath Das Prahlad Das Saraf, HUF, Chowk Bazar, Mathura under the provisions of the Act. The purchases were made against Bill No.822, dated 11.9.2006, and Bill No.821 of even date, respectively. Rajeev Kumar Jain had purchased the silver jewellery for Rs.4,27,488/- whereas A.K.Jain had purchased it for Rs.4,06,903/-. The Mathura dealer had charged U.P. trade tax on the sale effected by it. After making the purchases, both the petitioners proceeded by Kalka Mail to Kolkata where they resided. They boarded the train from Tundla junction. When the train was about to reach Etawah station, the police personnel of the Railway Protection Force enquired from the petitioners to show the luggage which they were carrying. It was found to be in excess of the permissible weight. Luggage had not been booked by the petitioners. They were produced before the Railway Magistrate, Aligarh, who was also travelling in the said train. The Railway Magistrate directed the petitioners to pay for the excess luggage and get it booked in the parcel van. The petitioners were asked to pay a sum of Rs.2,507/- and Rs.2570/- respectively for the alleged offence committed under Section 163 read with Section 179 of the Railways Act, which sum the petitioners deposited against issuance of receipts. According to the petitioners, they got down at Etawah railway station for getting the goods booked in the parcel van, where the Government Railway Police informed the Assistant Commissioner, Trade Tax, regarding carrying of silver jewellery being more than 50 Kgs. The notice under the provisions of Section 13A of the Act was issued on 20.11.2006 calling upon the petitioners to show cause as to why the goods be not seized. The petitioners submitted their reply in which it was specifically stated that the goods had been purchased on 11.9.2006 against cash payment from M/s Raghunath Das Prahlad Das Saraf, HUF, Chowk Bazar, Mathura and were being carried to Kolkata by train. It was a local sale in Mathura, on which the Mathura dealer had charged the trade tax and there was no question of any evasion of tax. Not satisfied with the reply submitted by the petitioners, the Assistant Commissioner, Trade Tax, Mobile Squad, Etawah, by separate orders dated 22.11.2006, had seized the goods on the ground that the selling dealer had not mentioned the address of the purchasers and as against the sale of Rs.4,27,488/- in the case of Rajeev Kumar Jain, a sum of Rs.19,000/- alone had been received by the said Mathura dealer, which made the entire transaction suspicious. The transaction appeared to be an inter-State sales which had not been recorded in the books of account and, therefore, there was an intention to evade tax justifying its seizure and its release on payment of security.

The seizure orders are under challenge in the present writ petitions on the ground that both the petitioners have made cash purchases from the Mathura dealer at the shop itself in which the Mathura dealer had charged the trade tax. There was no question of any evasion of tax in the State of U.P. They were carrying the goods to Kolkata where they resided and the goods could not have been seized under the provisions of Section 13/13A of the Act as it was traceable to a bona fide dealer and duly recorded in the books of the Mathura dealer.

In the counter affidavit filed by Sri S.K.Singh, Assistant Commissioner, Trade Tax, Mobile Squad, Etawah, the seizure has been justified on the ground that the bills have been prepared subsequently because at the time when the goods were seized on 13.9.2006 by the Railway Magistrate, no bill was produced. Further, the bills did not contain the full address of the petitioners and even if it was treated to be a cash sale, only a sum of Rs.19,000/- had been paid against the total consideration of Rs.4.00 lacs and odd by each of the petitioners. Thus, the entire transaction was suspicious and there was an intention to evade payment of tax. Only after its detection, the documents had been prepared to give it a colour. The seizure orders had rightly been passed.

In the rejoinder affidavit, the averments made in the counter affidavit have been denied and the pleas taken in the writ petition have been reiterated. It has further been stated that there was no occasion to produce the bills before the Railway Magistrate as the Railway Magistrate was not concerned as to whether the goods were covered by the valid documents or not.

A supplementary counter affidavit has been filed in which it has been stated that before the Railway Magistrate a statement was given by the petitioner on 13.9.2006 that he was travelling from Tundla to Howrah without any valid authorisation and transport authorisation relating to silver ornaments and further, he had no document relating to the silver ornaments and, therefore, the petitioners had managed to get the bills from the Mathura dealer.

We have heard Sri Ashok Kumar, learned counsel for the petitioner, and Sri M.R.Jaiswal, learned Standing Counsel appearing for the respondents.

Sri Ashok Kumar, learned counsel for the petitioners, submitted that the petitioners had purchased the silver goods from M/s Raghunath Das Prahlad Das Saraf, HUF, Chowk Bazar, Mathura, who is a registered dealer under the Act. The Mathura dealer had charged the U.P. trade tax as it was a local sale within the State of U.P. The petitioners were carrying the goods personally to Kolkata where they resided and there was no question of evasion of any tax. The proceeding before the Railway Magistrate was only in connection with the transportation of goods without getting it booked, for which the petitioners had paid the penalty. There was no occasion to produce the bills and, therefore, the inference drawn by the respondent that there was an intention of evasion of tax is wholly illegal and unjustified. The petitioners are entitled to release of goods unconditionally.

In reply, Sri M.R.Jaiswal, learned Standing Counsel, submitted that the bills have been got prepared after the goods were seized on 13.9.2006 by the railway authorities and were produced on 15.9.2006. The bills are suspicious and create doubt. The authorities have rightly treated the transaction as not recorded in the books of account and seized the same.

We have given our anxious consideration to the various pleas raised by the learned counsel for the parties.

We find that it is not in dispute that the petitioners were found carrying the silver ornaments in the train in excess of the permissible weight. The fine had been imposed by the Railway Magistrate. In the statement recorded by the Railway Magistrate on 13.9.2006, it had been stated by the petitioners that the goods are being transported without any valid authorisation nor they had any papers. The statement given by the each of the petitioners, which are identical, are reproduced below:-

"eS mDr pkWnh fcuk fdlh oS/k izkf/kdkj ,oa ifjogu izkf/kdkj ds lkFk Vw.Myk ls gkoMk rd tk jgk FkA vkt mDr pkWnh dk izirz esjs ikl ughsa gSA"

However, after the show cause notice had been issued, in the reply filed by them, they had taken the plea that the goods had been purchased from M/s Raghunath Das Prahlad Das Saraf, HUF, Chowk Bazar, Mathura. The transactions were cash in nature. There is no explanation as to why the Mathura dealer had received only a sum of Rs.19,000/- as part payment towards the cash for the sales of more than Rs.4.00 lacs from the petitioners without mentioning their address. The whole thing casts a suspicion on the transaction and, in these circumstances, we are of the considered opinion that it would not be appropriate for us to exercise our discretion under Article 226 of the Constitution of India. The petitioners have a remedy by filing an application under the provision of sub-section (6) of Section 13A of the Act before the authority concerned for getting the goods release without furnishing of security, where the entire matter can be gone into in great detail. We are not expressing any opinion on the merits of the case.

In this view of the matter, we are not inclined to interfere. The writ petitions are dismissed on the ground of alternative remedy. The petitioners, if so advised, may make an application under the provision of sub-section (6) of Section 13A of the Act and if any application is made, it shall be decided expeditiously in accordance with law.

6.7.2007

vkp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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