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KAITAN FANS (INDIA) LTD. versus COMMISSIONER OF TRADE TAX

High Court of Judicature at Allahabad

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Kaitan Fans (India) Ltd. v. Commissioner Of Trade Tax - SALES/TRADE TAX REVISION No. 1093 of 1996 [2004] RD-AH 1222 (27 October 2004)

 

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.55

TRADE TAX REVISION NO.1093 OF 1996

Khaitan Fans (India) Limited ....Applicant

Versus

Commissioner Trade Tax, U.P. ....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 07.08.1996 relating to the assessment year 1990-91, by which Tribunal has confirmed the penalty levied under section 15-A (1) (o) of the Act at Rs.28,200/-.

On 16.02.1991 while good was in transit, it was seized by the S.T.O. (SIB) on the ground that  Form 31 No.FX-206392 was incomplete. The goods was however, accompanied the challan and Form ST-38 prescribed under the Haryana Sales Tax Act. The goods was coming from Faridabad to Noida. In pursuance of the seizure of the goods, penalty proceeding was initiated under section 15-A (1) (o) of the Act. Applicant explained to the assessing authority that it was involved in the manufacturing of fan and was holding an eligibility certificate under section 4-A of the Act. It was explained that the aluminum sheets were purchased against bill no.401 dated 07.10.1990 from M/s Hindalco Industries Limited, which were sent to M/s Khaitan Electricals Limited, Faridabad against challan nos.1002 dated 14.01.1991 and challan no.57 dated 14.01.1991 for the manufacturing of fan blade. The frames of fans were also purchased  from M/s Rashmi Steel, Faridabad on 23.01.1991 for which Form-31 NO.206343 dated 14.01.1991 was submitted in the office. Frames and blade were sent to M/s Engineering & Painting Works, Faridabad for painting and after getting the job work done from the aforesaid two parties, goods were dispatched against challan no.1082 dated 16.02.1991 and 3756 dated 16.02.1991 and 881 dated 16.02.1991 from Faridabad to Noida factory but inadvertently Form-31 No.FX-206392 was not properly filled, which was provided in advance to the consignor. However, challan and Form ST-38 contemplated by the Haryana Government was available and on these facts, it was submitted that there was no intent to evade the payment of tax and, therefore, no penalty should be levied. Assessing authority had not accepted the plea and had levied the penalty at Rs.28,200/-, which was confirmed in first appeal and by the Tribunal also.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the Tribunal has erred in observing that the electric fan was being imported, which was a final product and not the component part.  He further submitted that the Tribunal is wrong to say that dealer had failed to prove the bonafide that the goods actually gone to Faridabad and it was coming after completion and further there is no evidence to show that the goods sought to be imported was component. He submitted that order passed under section 15-A (1) (o) of the Act shows that the necessary evidence had been filed to prove that the goods had been sent for job work, which were coming from Faridabad to Noida after the manufacturing. He further submitted that the assessing authority accepted that the goods sought to be imported was to be used in the manufacturing in which there was no occasion of any liability of tax. He further submitted that for the year under consideration assessing authority had accepted the books of account and the disclosed turn over. Copy of the assessment order has been enclosed as annexure no.5 to the revision, to prove that no case of any attempt to evade the payment of tax has been made out.

I have perused the order of Tribunal and the authorities below.

In my opinion, order of the Tribunal can not be sustained. Tribunal appears to have not considered the evidence filed by the applicant to prove that the goods were dispatched for job work to Faridabad, which were coming after manufacturing and the good was only the component part and not the complete fan. Tribunal also appears to have not considered that the books of account had been accepted by the assessing authority. Therefore, the order of Tribunal is vitiated. In my opinion, matter requires reconsideration by the Tribunal.

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 observation made above.

Dt.27.10.2004

R./


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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