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M/S Jaiswal Timbers v. Commissioner Trade Tax U.P.Lko. - SALES/TRADE TAX REVISION DEFECTIVE No. 374 of 1998  RD-AH 5701 (14 November 2005)
TRADE TAX REVISION NO.(374) OF 1998
M/s Jaiswal Timbers. ....Applicant
The Commissioner of Trade Tax. ....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 21.01.1998 for the assessment year 1990-91, by which Tribunal has affirmed the penalty levied under section 13-A (4) of the Act.
Brief facts of the case are that the applicant was carrying on the business of timber. On 06.01.1991 applicant had send one truck logs in 20 pcs. to M/s Mahalaxmi Saw Mills, Varanasi against challan dated 06.01.1991. In the challan it was stated that the measurement of the logs may kindly be made today and provided to the driver so that the bill may be issued. The money was also been demanded from the party concerned and it was also stated that whatever money would be sent, the same would be deposited in their account. On 07.01.1996 the vehicle was intercepted by the Trade Tax Officer, Mobile Squad, Varanasi and on the allegations that in the challan there was no serial number and registration number, show cause notice was issued. Applicant filed reply to the show cause notice stating therein that the logs have been purchased from Madhya Pradesh against Form-31 and the entry of the purchases were duly made in the books of account. It was stated that the good was being sent for the first time outside the Mirzapur and due to lack of knowledge in the challan serial number could not be mentioned. Check post officer could not accepted the plea of the applicant and passed the seizure order. Goods was subsequently released on furnishing of security. In pursuance of the seizure order notice under section 13-A (3) of the Act was issued. Applicant filed reply to the show cause notice and stated that the expenses for sending the logs had been duly entered in cash book on 06.01.1991. Cash book was produced before the Trade Tax Officer, Mobile Squad and it was duly signed by the Trade Tax Officer, Mobile Squad on 08.01.1991. Bill no.722 dated 16.01.1991 was duly raised for Rs.25,471/-, which was entered in the books of account on the basis of the measurement sent by M/s Mahalaxmi Saw Mills, Varanasi. Assessing authority had not accepted the plea of the applicant and levied the penalty at Rs.16,875/-, which has been confirmed in first appeal and by the Tribunal.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that for the first time applicant had sent the goods outside the Mirzapur and due to unawareness serial number in the challan was not mentioned. He submitted that the entry of the freight was duly made =in the cash book on 06.01.1991, which was duly produced before the Trade Tax Officer, Mobile Squad on 08.01.1991. He submitted that when the measurement of the logs was received from M/s Mahalaxmi Saw Mills, Varanasi bill no.722 dated 16.01.1991 for Rs.25,471/- was prepared which was duly made in the cash book. On these facts he submitted that there is no case of any attempt to evade the tax and the goods was being omitted to enter in the books of account and, therefore, penalty is unjustified. Learned Standing Counsel relied upon the order of the Tribunal.
I have perused the order of the Tribunal and the authorities below.
In my opinion, no case has been made out that the goods was omitted to have shown in the books of account. When the goods was intercepted, challan relating to the goods was produced. In the challan name and address of the applicant and name and address of the purchaser were duly mentioned. In the challan applicant had written a letter to M/s Mahalaxmi Saw Mills, Varanasi asking them to take the measurement of the goods and inform immediately so that the bill may be raised, some payment was also asked for and it has been stated that the payment would be entered in their account. After show cause notice, before the Trade Tax Officer, Mobile Squad applicant produced cash book and have shown the entry of the freight for sending the goods. In reply to the show cause notice it was also stated that the goods were purchased from Madhya Pradesh against Form-31 and were duly entered in the books of account. In the circumstances, there was no reason to infere that the entry of the goods were not available in the books of account. In case, if Trade Tax Officer, Mobile Squad had any doubt about the entry in the books of account after inspection, survey would have been made at the shop of the applicant but the same had not been done. Applicant had produced the books of account and have shown the entry of the goods in the books of account. In the circumstances, penalty is not justified.
In the result, revision is allowed. Order of the Tribunal is set aside and the penalty is quashed.
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