High Court of Judicature at Allahabad
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The Commissioner, Trade Tax U.P. Lko. v. S/S P.K.Oil Mill, Freganj, Agra - SALES/TRADE TAX REVISION No. 384 of 1997  RD-AH 126 (7 January 2005)
TRADE TAX REVISION NO.384 OF 1997
The Commissioner, Trade Tax, U.P., Lucknow. ....Applicant
S/S P.K.Oil Mill, 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 Tribunal dated 22.10.1996 for the assessment year 1989-90.
Dealer/opposite party (hereinafter referred to as "Dealer") was engaged in the business of manufacture and sale of tin containers and was holding recognition certificate under section 4-B of the Act for the purchase of raw material at the concessional rate, which included the colour and varnish. During the year under consideration, dealer had purchased paint and issued Form 3-B in respect thereof and availed the benefit of concessional rate of tax. Assessing authority initiated the penalty proceedings under section 3-B of the Act on the ground that the dealer had issued false and wrong certificate for the purchase of enamel paint, while it was holding a recognition certificate for colour and varnish and after the reply from the dealer, assessing authority levied the penalty at Rs.5,682/- under section 3-B of the Act. First appeal, filed by the dealer was rejected. Dealer filed second appeal before the Tribunal. Tribunal held that the enamel paint falls under the entry of "Colour and varnish" for which dealer was holding recognition certificate. Tribunal further held that in the earlier years also, dealer had made the purchases and no objection was raised. On these facts, Tribunal concluded that there was no malafide intention on the part of the dealer, in as much as the enamel paint was covered within the entry of "Colour and varnish" for which the dealer was granted recognition certificate and accordingly, order passed under section 3-B of the Act was set aside. Tribunal however, also observed that in respect of the said purchases penalty under section 4-B (5) of the Act was levied, which was subsequently, deleted in appeal.
Following question has been raised in the present revision:
"Whether under the facts and circumstances of the case, learned Trade Tax Tribunal was justified in accepting the contention of the dealer that no amount u/s 3B can be imposed on the assessee if penalty u/s 4B(5) has been previously set aside in appeal and, to set aside the amount imposed u/s 3B vide order dt.25.8.94.?"
In my opinion, question raised is only academic. Tribunal had set aside the order passed under section 3-B of the Act on the ground that enamel paint is covered within the entry of "Colour and varnish" for which dealer was registered, which has not been disputed in the present revision and not only on the ground that the penalty under section 4-B (5) of the Act was deleted. I do not find any error in the order of Tribunal and the same is accordingly upheld.
In the result, revision fails and is accordingly, dismissed.
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