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The Commissioner, Trade Tax v. S/S Arihant Tradersnics - SALES/TRADE TAX REVISION No. 563 of 1999  RD-AH 12845 (2 August 2006)
Court no. 43
Trade Tax Revision no. 563 Of 1999.
The Commissioner, Trade Tax, U. P. Lucknow. .... Revisionist.
M/S Arihant Traders, Lalitpur. ... Opp. Party.
Hon'ble Rajes Kumar, J.
Present revision under section 11 of U.P. Trade Tax Act (hereinafter referred to as the "Act") is directed against the order of Tribunal dated 05th, February, 1999 relating to the penalty under Section 13-A (4) of the Tax Act.
Dealer/opposite party (hereinafter referred to as the "Dealer") is a registered dealer under the U. P. Trade Tax Act and was carrying on the business of Supari etc. On 02.03.1997 Vehicle no. MP-23/DA-1589 was intercepted by the Trade Tax Officer (Mobile Squad), Kanpur. On physical verification, 192 bags of Supari were found. Bill no. 39 dated 02.03.1997 and builty no. 117 dated 02.03.1997 for 221 bags of Supari Lali mix were produced. The Trade Tax Officer, (Mobile Squad) seized the goods on the ground that the bill which was produced was for 221 bags of Supari Lali mix while on physical verification, 192 bags of Supari was found consisting of 55 bags Choti Supari, 137 bags white Supari. It has also been held that despite time being allowed, books of account was not produced for verification. In pursuance of the seizure, a notice under Section 13-A (3) was issued. Dealer appeared before the Assessing Officer and explained that by mistake of loading instead of 221 bags, only 192 bags of Supari were loaded, no explanation was given with regard to differences in the quality of Supari. The Assessing Authority levied the penalty on the ground that the bill which was produced was for 221 bags Supari Lali mix while on physical verification, 192 bags of Supari was found consisting of 55 bags Choti Supari, 137 bags white Supari and despite the time being given, books of account were not produced for verification. Dealer filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Jhansi. The Deputy Commissioner (Appeals), Trade Tax, Jhansi vide order dated 09.3.1998 allowed the appeal and set aside the penalty. The Commissioner of Trade Tax filed appeal before the Tribunal. The Tribunal vide impugned order, dismissed the appeal.
Heard learned Counsel for the parties.
Learned Standing Counsel submitted that 192 bags of Supari, which was found at the time of inspection on 02.3.1997, loaded in Vehicle no. MP-23/DA-1589 was not accompanied by bill and builty. He submitted that bill no.39 dated 2.3.1997 and builty no. 117 dated 2.3.1997 which were produced, were for 221 bags of Supari Lali mix while on physical verification, only 192 bags of Supari consisting 55 bags Choti Supari and 137 bags white Supari was found. He submitted that despite the opportunity being given by the Trade Tax Officer (Mobile Squad), books of account was not produced, therefore, inference has been rightly drawn that at the time of inspection, goods were not recorded in the books of account, thus, penalty levied under Section 13-A (4) was justified. He submitted that the First Appellate Authority as well as the Tribunal have not considered the reasoning given by the Assessing Authority for levy of penalty and has illegally deleted the penalty. Learned Counsel for the dealer submitted that the bill and builty were produced at the time of inspection itself and it was explained that by mistake, only 192 bags of Supari were loaded. He submitted that in the bill Lali mix Supari was mentioned which means Supari of various varieties and on physical verification same goods were found and thus, it cannot be said that the bill no. 39 was not related to impugned goods. He further submitted that in the notice under Section 13-A (3) of the Act, the Assessing Authority has only proposed to levy penalty at Rs.1,71,105/- while the penalty at Rs.3,42,210/- had been levied illegally.
I have perused the order of the Tribunal and the authorities below. The perusal of order of Tribunal and the Authorities below shows that they have not considered the reasons given by the Assessing Authority for levy of penalty. What has to be examined is whether at the time of inspection, the goods was accompanied by proper documents and was found entered in the books of account or not. Admittedly, the goods was 192 bags of Supari consisting 55 bags of Choti Supari, 137 bags white Supari while bill no.39 which was produced relates to 221 bags of Supari Lali mix, therefore, it cannot be said that the bill no. 39 related to the goods which were found at the time of inspection. Moreover, when the goods were inspected, the dealer was asked to produce the books of account, which were not produced for verification. Thus, the reasonable inference would be that the goods were not entered in the books of account. Thus, on the facts and in the circumstances of the present case, in my view, levy of penalty was justified. Since the Assessing Authority in the notice under Section 13-A (3) has only proposed to levy penalty at Rs.1,71,105/- there is no justification on his part to levy penalty at Rs.3,42,210/-. Even otherwise, the levy of penalty at Rs.3,42,210/- is excessive and penalty at Rs.1,71,105/- is up held.
In the result, revision is allowed in part. Order of the Tribunal dated 5.2.1999 is set aside and the amount of penalty to the extent of Rs.1,71,105/- is up held. The Tribunal is directed to pass appropriate order under Section 11 (8) of the Act.
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