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THE COMMISSIONER ,TRADE TAX ,U.P. LUCKNOW versus BANSAL TRADERS CHANDPUR

High Court of Judicature at Allahabad

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The Commissioner ,Trade Tax ,U.P. Lucknow v. Bansal Traders Chandpur - SALES/TRADE TAX REVISION No. 230 of 2000 [2006] RD-AH 12940 (3 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.43

TRADE TAX REVISION NO.230 OF 2000

The Commissioner of Trade Tax U.P., Lucknow.       ....Applicant

Versus

S/S Bansal Traders, Chandpur.   .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 07.08.1999 relating to the assessment years 1996-97.

Brief facts of the case are that the Dealer/opposite party (hereinafter referred to as "Dealer") had despatched 120 qtls. Gur  to M/s Prakash Traders, Vishnupur, Bengal in truck no.U.P. 12-C-2191 against letter no.42, builty no.931, 9-R No.0007 42/2005, gate pass no.958444/9580 all dated 16.12.1996. While the goods were in transit, Trade Tax Officer, Mobile Squad intercepted the vehicle. Alongwith the goods, the aforesaid documents were found. However, in the bill the registration number was not mentioned and, therefore, the goods were seized and on furnishing of security, goods were released. In pursuance of the seizure order, notice under section 13-A( 3) of the Act was issued.  Dealer appeared and submitted that the goods were accompanied by the proper documents and the entries of the goods were available in the books of account; the application for registration was pending and, therefore, in the bill and challan, seal of A/F was placed, which means applied for. The claim of the dealer was that the goods were purchased on behalf of Ex-U.P. Principal and after purchasing the goods, same were being despatched. Assessing authority, however, had not disputed that the entries of the goods were available in the books of account and the goods were accompanied by the documents but had held that the dealer could not produce the order of the Ex-U.P. Principal and the application for registration was moved for the purchase and sale and in the statement dated 20.12.1996 it was stated that dealer would purchase the gur and pay the tax alongwith the return being first purchaser. Taking the transactions as doubtful, assessing authority levied the penalty under section 13-A (4) of the Act. In first appeal, order of the assessing authority has been confirmed. Dealer filed second appeal. Tribunal by the order dated 12.08.1998 rejected the appeal and confirmed the penalty on the ground that on 15.12.1996 and 16.12.1996 on the date of transactions, dealer was not registered and in the registration application it had not been shown that the dealer would make the purchases on behalf of Ex-U.P. Principal and registration was provided under section 7 (1) of the Act  w.e.f. 12.01.1997. On these facts, it has been observed that the authorities below found the transactions as doubtful. Dealer moved an application under section 22 of the Act on the ground that for the purpose of levy of penalty under section 13-A (4) of the Act, the only condition is that the goods were omitted to have been entered from being shown in the accounts, registers and other documents while in the present case when the goods were checked, it was accompanied by the documents and the entry of the goods were duly found entered in the books of account. It has been stated that other conditions are wholly irrelevant. Tribunal vide order dated 07.08.1999 allowed the appeal and rectified its earlier order to the extent allowing the appeal and deleted the penalty under section 13-A (4) of the Act.  Tribunal held that no case has been made out that the goods were not found entered in the books of account, which is necessary for the levy of penalty under section 13-A (4) of the Act.

Heard learned counsel for the parties.

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

Section 13-A (4) of the Act reads as follows:

"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 account 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."

From the perusal of the aforesaid provision, it is clear that for the levy of penalty, assessing authority should satisfied that the goods were omitted from being shown in the accounts, registers and other documents. In the present case when the goods were checked it was accompanied by the documents. It was seized on the ground that in the bill, registration number was not mentioned. Admittedly, dealer was not registered on the date of the transactions. Thus, the registration number was not mentioned.  Subsequently, in pursuance thereof notice under section 13-A (3) of the Act was issued. Dealer appeared and submitted that the goods were entered in the books of account. No case has been made out by the assessing authority that the goods were omitted to have been entered in the books of account. The only objection of the assessing authority was that the dealer was not registered on the date of the transactions and the registration was obtained under section 7 (1) of the Act for the purchase and sales and the dealer has stated that it would make the purchase of gur and pay the tax. These grounds are not relevant for the levy of penalty under section 13-A (4) of the Act. Under section 13-A (4) of the Act penalty can only be levied in case where the goods were omitted from being shown in the account registers and other documents. Since no case has been made out that goods were not entered in the books of account which is clear from the assessment order itself, the Tribunal rectifies its earlier order and deleted the penalty.

On the facts and circumstances of the case, I do not find any reason to interfere.

In the result, revision fails and is accordingly, dismissed.

Dt.03.08.2006

R./


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