High Court of Judicature at Allahabad
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M/S P.K. Traders, Navin Galla Mandi, Lalitpur. v. Commissioner Trade Tax Lko - SALES/TRADE TAX REVISION DEFECTIVE No. 1489 of 1998  RD-AH 4489 (20 October 2005)
TRADE TAX REVISION NO.(1489) of 1998.
M/S P.K. Traders, Navin Galla Mandi, Lalitpur. 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 30th June, 1998 relating to the assessment year 1991-92.
Brief facts of the case are that the assessing authority had levied the penalty on the ground that at the time of inspection dated 11.3.1992 by the Trade Tax Officer, Mobile Squad in Truck no.URM-1264, 101 bags of Masoor was being transported from Lalitpur to Lucknow. Along with the goods, mandi gate pass dated 7.3.1992 was available according to which the goods had to reach at the destination by 8.3.1992. Since the goods could not reach the destination by 8.3.1992, the goods were seized by mobile squad, which was subsequently released on furnishing of security. Later on, on the basis of the alleged seizure, penalty proceeding under section 13-A (4) of the Act was initiated. Applicant filed reply to the show cause notice and explained the reason for the delay. It was explained that the tyre of the vehicle was damaged and, therefore, the delay was caused. This explanation of the applicant was not accepted and a sum of Rs.30, 000/- was levied towards penalty under section 13-A (4) of the Act. Applicant filed appeal before the Assistant Commissioner (Judicial), which was allowed, and the penalty has been deleted. First appellate authority observed that along with the goods, mandi gate pass no.03704/10, 9 R dated 7.3.1992, builty and one Form 3-C (2) no.326989 were found at the time of inspection and the delay in transportation of the goods was also explained. First appellate authority has come to the conclusion that the goods was traceable to the bonafide dealer and was found entered in the books of account and, therefore, there was no case of any penalty. Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order allowed the appeal; set aside the order passed by the first appellate authority and restored the order of the assessing authority. Tribunal held that no proper reason has been given for the delay. Tribunal further held that as per the mandi gate pass, goods had to reach at the destination by 8.3.1992 and if it is believed that the tyre of the vehicle was damaged, it could not take 2-3 days, Tribunal accordingly, rejected the explanation for delay in transportation of the goods and upheld the penalty.
Heard learned counsel for the applicant and the learned Standing Counsel.
Learned counsel for the applicant submitted that the books of account of the applicant has been accepted by the assessing authority, the copy of the assessment order dated 23.3.1996 is Annexure-3 to the revision. He further submitted that at the time of inspection, along with the goods, mandi gate pass, bill, builty etc were available and no case has been made out that the goods were omitted from being shown in the books of account inasmuch as the goods belonged to the bonafide dealer and, therefore, penalty sustained by the Tribunal is illegal. Learned Standing Counsel relied upon the order of the Tribunal.
I have perused the order of the Tribunal and the authorities below.
I find force in the argument of the learned counsel for the applicant. Section 13-A (4) of the Act reads as follows:
"Section 13-A. Power to seize.
(4) If such authority, after taking into consideration the explanation, if any, of the dealer or, as the case may be, the person incharge and giving him an opportunity of being heard, is satisfied that the said goods were omitted from being shown in the accounts, registers and other documents referred to in sub-section (1) it shall pass an order imposing a penalty not exceeding forty percent, of the value of such goods as he deems fit."
Under Section 13-A (4) of the Act, penalty is leviable in case the goods were omitted from being shown in the accounts, registers and other documents and unless aforesaid condition is satisfied, penalty under section 13-A (4) of the Act can not be levied. In the present case, the goods was traceable to the bonafide dealer and no case has been made out that the goods were omitted from being shown in the books of account thus merely because as per mandi gate pass, the goods ought to have reached the destination by 8.3.1992 and there was a delay in the transportation of the goods, provision of Section 13-A (4) of the Act could not be invoked unless the aforesaid condition is satisfied.
For the reasons stated above, order of the Tribunal is set aside.
In the result, revision is allowed. Order of the Tribunal is set aside.
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