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The Commissioner Trade Tax v. Hina Cooler Corp., - SALES/TRADE TAX REVISION DEFECTIVE No. 609 of 1999 [2006] RD-AH 14417 (25 August 2006)


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


S/S Hina Cooler Corporation, Bulandshahr.   .Opp.party

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 28.07.1999 relating to the assessment year 1996-97. Revision NO.(609) of 1999 relates to the penalty under section 13-A (4) of the Act while revision no.(611) of 1999 relates to the assessment proceedings.

Dealer/opposite party (hereinafter referred to as "Dealer") was engaged in the business of  manufacture and sale of cooler body and had disclosed its turn over at Rs.77,665/-, which had been raised to Rs.8,90,000/- by the assessing authority by way of best judgment assessment.  In first appeals, turn over has been reduced to Rs.1,20,000/-. Tribunal allowed both the appeals and accepted the disclosed turn over. Penalty under section 13-A (4) of the Act has been levied on the ground that on 13.02.1997 Trade Tax Officer, Mobile Squad, Bulandshahar had found that the goods for Rs.15,900/- against bill no.52 was being transported. For the proper verification of the bill, matter had been referred to the assessing authority.  Assessing authority issued notice and on the basis of discrepancies found in the bill available alongwith the goods and the carbon copy of the bill. Notice under section 13-A (3) of the Act was issued and a sum of Rs.4,770/- was levied towards penalty under section 13-A (4) of the Act by passing ex-parte order. Order of the penalty has been confirmed in first appeal. In second appeal, Tribunal allowed the appeal and set aside the penalty order. Tribunal held that the goods were found entered in the books of account. Tribunal further held that the goods have not been seized. The books of account and disclosed turn over has been accepted by the Tribunal on the ground that the enhancement of the turn over has been made only on the basis of the alleged discrepancies found by the Trade Tax Officer, Mobile Squad, Bulandshahar on 13.02.1997 and the penalty levied under section 13-A (4) of the Act.

Heard learned Standing Counsel. Despite the service of notice, no one appears on behalf of the dealer.

Learned Standing Counsel submitted that the bill no.52, which was found alongwith the goods was not issued from the regular bill book and was issued from the bill book, maintained for labour charges and therefore, the difference was found in bill no.52 found alongwith the goods  and the carbon copy of the bill and thus, the penalty has rightly been levied. He submitted that the estimate of turn over made by the assessing authority was also justified on the basis of the material.

I do not find any substance in the argument of learned Standing Counsel. Penalty under section 13-A (4) of the Act can only be levied in respect of the goods seized under section 13-A (1) of the Act. If the goods is not seized, penalty proceedings under section 13-A (3) of the Act can not be initiated. In the present case, it appears that the goods had not been seized. Further dealer  had explained that since both the copies of the bill had been taken away by the purchaser, therefore, bill no.52 was issued from the bill book relating to the labour charges maintained in the regular course of business and, therefore, the difference occurred in the bill found alongwith the goods and carbon copy of the bill but the entry of the goods was duly found entered in the books of account. Tribunal has accepted the explanation of the dealer and held that the entries of the goods were found entered in the books of account. Finding of the Tribunal is finding of fact. No contrary material has been shown by the learned Standing Counsel.

For the reasons stated above, both the revisions fail and are accordingly, dismissed.




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