High Court of Judicature at Allahabad
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The Commissioner,Trade,U.P.Lucknow v. S/S Officer Incharge,National Mineral Dev. Corpn.Ltd. - SALES/TRADE TAX REVISION No. 1305 of 1997  RD-AH 2378 (5 September 2005)
TRADE TAX REVISION NO.1305 OF 1997
The Commissioner, Trade Tax, U.P. Lucknow. ....Applicant
S/S Officer Incharge, National Mineral
Development Corporation Ltd., Raipur. ....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 17.07.1997 for the assessment year 1988-89, by which Tribunal has rejected the appeal of the Commissioner of Trade Tax filed against the order of Assistant Commissioner (Judicial), Trade Tax, Jhansi on 30.04.1991 by which first appellate authority has deleted the penalty levied under section 15-A (1)(q) of the Act. It appears that the dealer opposite party (hereinafter referred to as "Dealer") has obtained one Form-34 at the Masaura check post for the transportation of machine for its use at Himachal Pradesh. It also appears that the said Form-34 had not been surrendered at the exit check post and, therefore, proceedings under section 15-A (1)(q) of the Act has been initiated. Dealer could not appear before the Sales Tax Officer and, therefore, a sum of Rs.2 lacs has been levied towards penalty. First appeal filed before Assistant Commissioner (Jhansi), Trade Tax, Jhansi. Before the first appellate authority dealer filed various evidences in the Form of Nagar Palika receipt, purchase of diesel, the receipt of the odal check post of the Haryana border etc. to establish that the said machine was not sold inside the State of U.P. and it has been transported outside the State of U.P.. First appellate authority on consideration of entire facts has accepted the plea of the dealer and deleted the penalty. Commissioner of Trade Tax filed appeal before the Tribunal, which has been dismissed by the impugned order.
Heard learned counsel for the parties.
Learned Standing Counsel submitted that admittedly Form-34 was not surrendered at the exist check post, therefore, the provisions of section 28-B of the Act has been violated and the dealer was liable for penalty under section 15-A(1)(q) of the Act. I do not find any force in the argument of learned Standing Counsel. On the basis of the evidences produced, first appellate authority and the Tribunal has held that the machine in respect of which Form-34 was obtained had not been sold inside the State of U.P. and had gone outside the State of U.P. Section 28-B of the Act is machinery provision to ensure the movement of goods from outside the State of U.P. to outside the State of U.P. Once it is established the goods have not been sold inside the State of U.P. and have gone outside the State of U.P., presumption raised in section 28-B of the Act stands rebutted and no action can be taken for the alleged violation of section 28-B of the Act. In the present case, it has been found that the goods have not been sold in side the State of U.P. and had gone outside the State of U.P., the presumption under section 28-B of the Act stands rebutted and, therefore, first appellate authority has rightly deleted the penalty under section 15-A (1)(q) of the Act.
In the result, revision fails and is accordingly, dismissed.
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