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M/S P.K. Foot Wears v. Commissioner Of Trade Tax, U.P., Lucknow - SALES/TRADE TAX REVISION No. 51 of 2005 [2005] RD-AH 249 (25 January 2005)


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M/s P.K. Foot Wears. ....Applicant


The Commissioner, Trade Tax, U.P., Lucknow. ....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 28.07.2004 for the assessment year 1996-97.

Applicant was engaged in the business of shoe and alleged to have maintained the books of account in the regular course of business. Books of account of the applicant had been rejected on the ground that applicant was found importing certain shoes which were purchased from M/s Ganesh Polymers Private Limited, Delhi against bill no.323, which related to 20 cartoons of PVC shoes, while on physical verification it was found that instead of 24  pairs, 40 pairs per cartoon shoes was found. No proper explanation of the difference was given and accordingly,  penalty under section 15-A-1(o) of the Act was levied and on this ground books of account was rejected and the turn over was estimated at Rs.2 lacs as against the disclosed turn over of Rs.37,550/-. First appeal filed by the applicant was allowed. Before first appellate authority appeal against the penalty order passed under section 15-A (1)(o) of the Act as well as against the assessment order were under consideration. First appellate authority held that the applicant attempted to avoid the tax, in as much as intended to import excess quantity of shoes for which no proper explanation was given and accordingly, upheld the penalty under section 15-A (1)(o) of the Act but accepted the books of account and disclosed turn over on the ground that since penalty had already been levied under section 15-A (1)(o) of the Act, therefore, enhancement of the turn over was not justified and it has also been observed that the entry of imported goods were made in the books of account. Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order allowed the appeal and set aside the order of the first appellate authority and restored the order of the assessing authority.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the Tribunal has erred in allowing the appeal of the Commissioner of Trade Tax. He submitted that assessing authority has also not given any show cause notice as required under the Rule. Therefore, the enhancement of the turn over was unjustified.

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

I do not find any error in the order of Tribunal. Though first appellate authority while confirming the penalty under section 15-A (1)(o) of the Act had held that no proper explanation has been given in respect of the excess quantity imported by the applicant but accepted the disclosed turn over on the ground that the penalty has been levied under section 15-A (1)(o) of the Act. This view of the first appellate authority was patently erroneous. Once for upholding the penalty under section 15-A (1) (o) of the Act it has been held that the applicant has attempted to evade the tax and no proper explanation was given in respect of the excess quantity of the goods sought to be imported the same would be good ground for rejection of books of account, accordingly, the view of the Tribunal rejecting the books of account is upheld. In this view of the matter, revision has no force and is accordingly, dismissed.




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