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THE COMMISSIONER TRADE TAX U.P. LUCKNOW versus SHRI RAM MACHINERY STORES

High Court of Judicature at Allahabad

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The Commissioner Trade Tax U.P. Lucknow v. Shri Ram Machinery Stores - SALES/TRADE TAX REVISION No. 1010 of 1999 [2007] RD-AH 157 (3 January 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

Court no. 22

Trade Tax Revision no. 1010 of 1999.

Commissioner of Trade Tax, U. P. Lucknow. ... Revisionist.

Vs

S/S Shri Ram Machinery Stores, Agra. ... 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 the Tribunal dated 05.04.1999 relating to the assessment year 1997-98.

Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of Motor Parts.   A penalty under Section 15-A (1) (o) of the Act was levied by the Assessing Authority on the ground that on 24.9.1997 Truck no. U.P. 82/A-8653 was checked by the Trade Tax Officer, Fatehpur Sikri on receiving the information that the driver of the Truck had crossed the Check Post.  When the Vehicle was brought to the Check Post, the Motor Parts were found loaded in the Vehicle and from the possession of the driver, four bills issued by the various parties of Rajkot were found.  The statement of the driver was recorded by the Check Post Officer, in which, he stated that the papers relating to the goods were given to one person sitting in a Tent and he had returned the papers in one envelop and stated that the Vehicle had been passed.  On that basis, the Vehicle had been taken outside the Check Post.  When the Show-cause-notice was issued, it was stated that in Challan, it was mentioned that the goods could not cross the Check Post without receiving the declaration Form from Agra party.  In this way, the driver should have waited to get the form 31 from Agra.  However, Form 31 was submitted on the next day.  The Check Post Officer had not accepted the plea of the dealer and seized the goods and subsequently on furnishing of security, the goods were released.  In pursuance of the seizure order, penalty notice under Section 15-A (1)(o) of the Act was issued.  Before the Assessing Authority, dealer submitted that in the Challan, driver was instructed to receive the Form 31 from Agra and without waiting for Form 31 he had crossed the Check Post.  He submitted that Form 31 was submitted on the next day, therefore, there was no intention to evade the tax.  The Assessing Authority levied the penalty on the ground that the driver had crossed the Check Post without getting the Form 31 passed.  The driver had taken the Vehicle outside the Check Post, which was caught after receiving the information.  There was no Form 31 alongwith the driver and the dealer took the contradictory plea.  A sum of Rs.1,30,000/- was levied towards the penalty on the value of Rs.3,25,000/-.  First appeal filed by the dealer was rejected.  Dealer filed Second Appeal before the Tribunal.  The Tribunal by the impugned order, allowed the appeal and set aside the penalty.  The Tribunal held that in the Challan since, there was a specific direction that the Vehicle may stop at Fatehpur Sikri and after getting the Form 31 from Agra, the Vehicle would enter inside the State of U. P. while the driver entered inside the State of U. P. without waiting for Form 31.  Thus, the mistake was on the part of the driver and there was no ill intention on the part of the dealer. It has been further stated that the dealer had immediately submitted the Form 31 after receiving the information.  This also shows bonafide intention on the part of the dealer and shows that there was no intention to evade the tax.  The Tribunal further held that Form 31 was available with the appellant, which was issued by the Department.  Thus, in the absence of any intention to evade the tax, the penalty was deleted.

Heard learned Counsel for the parties.

Learned Standing Counsel submitted that the Tribunal has erred in deleting the penalty.  He submitted that present is the patent case where the driver of the Vehicle who was the agent of the dealer had attempted to import the goods without presenting the documents at the Check Post.  He submitted that the Vehicle had crossed the Check Post and subsequently caught on receiving the information.  When the Vehicle was checked, there was no declaration Form available with the driver.  The Form 31 was admittedly produced on the next day.  He submitted that in the statement, driver had categorically stated that the documents were given to a person sitting in a Tent which was subsequently returned in an envelop and stated that the Vehicle had been passed and on that basis, Vehicle was brought inside the State of U. P. while subsequently, it was stated that in the Challan, instruction was given to the driver that Form 31 would be obtained at Agra and on obtaining the Form 31, the Vehicle would enter inside the State of U. P.  He submitted that both the pleas taken by the dealer were contradictory and facts remain that the driver had attempted to enter inside the State of U. P. without making proper declaration at the Check Post and even at the Check Post, declaration Form was not found.  Thus, the Tribunal has erred in deleting the penalty.  

Learned Counsel for the dealer submitted that on the facts, the Tribunal has held that the mistake was on the part of the driver and there was no ill intention on the part of the dealer.  He submitted that the Tribunal has also held that Form 31 was available with the dealer, which had been submitted on the next day, therefore, the Tribunal has rightly deleted the penalty.  He further submitted that the books of account and the disclosed turnover have been accepted by the Assessing Authority for the year under consideration.   He placed reliance on the decision of this Court in the case of M/S Glaxo Laboratories (India) Ltd. versus Commissioner of Trade Tax reported in 2005 Tax Law Diary page 241, in which, penalty was deleted on the ground that the import of the goods were found recorded in the books of account, though, the goods were imported without the declaration Form.   During the course of argument, the copy of the assessment order for the assessment year 1997-98 has been produced before this Court.  

Having heard learned Counsel for the parties and perused the order of Tribunal and the authorities below.  

In my view, on the facts and circumstances of the case, the order of the Tribunal is not sustainable.  Admittedly, the goods were not declared voluntarily at the Check Post.  The driver had taken the Vehicle outside the Check Post and had entered inside the State of U. P. without the declaration of the goods at the Check Post.  On the information being received by the Check Post Officer, the Vehicle was checked and caught and brought at the Check Post and on enquiry being made, declaration Form was not available.  In the statement, the driver stated that he had given the papers to one person sitting in a Tent who had subsequently returned the papers in an envelop and stated that the Vehicle had been passed, therefore, he entered inside the State of U. P.  This shows that the driver was aware that necessary papers were required to be submitted at the Check Post, for endorsement but when the Vehicle was checked, declaration Form was not available.  This further shows that in the absence of declaration Form, driver attempted to import the goods inside the State of U. P.  Subsequent plea of the dealer that in the Challan, driver was instructed to get the Form 31 from Agra and thereafter to enter inside the State of U. P. has no relevance on the facts and circumstances of the case.  Thus, it is a case where the driver had attempted to import the goods inside the State of U. P. without making declaration at the Check Post and without getting the Form 31 endorsed, therefore, there was a violation of provisions of Section 28-A of the Act.  The Driver/transporter was the agent of the dealer thus, the dealer was liable for the penalty.  The Tribunal has erred in deleting the penalty on the facts and circumstances of the case.  The order of the Tribunal to this extent is liable to be set aside.  Since the Tribunal has not adjudicated the quantum of penalty, the matter is remanded back to the Tribunal to decide the quantum of penalty.

So far as the decision in the case of M/S Glaxo Laboratories (India) Ltd. versus Commissioner of Trade Tax (supra) is concerned, it does not apply to the present case.  In the said case during the course of assessment proceedings, it was found that the dealer had imported certain goods without the declaration Form.  Though, the goods were found entered in the books of account and was declared by the dealer during the course of assessment proceedings.  In that case, there was no attempt to evade the purchases and there was no any case of seizure of the goods, thus, the aforesaid case is not applicable in the present case and is clearly distinguishable.  The perusal of the assessment order reveals that no adverse inference had been drawn from the seizure of the goods on the basis of the impugned order which is impugned in the present revision, therefore, no benefit of assessment order can be given to the dealer.

In the result, revision is allowed in part.  Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to adjudicate the quantum of penalty.

Dt:03.01.2007.

MZ/-


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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