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The Commissioner Trade Tax U.P. v. Anand Kumar Prop. S/S K.P. Enterprises - SALES/TRADE TAX REVISION No. 2633 of 2004 [2006] RD-AH 17322 (6 October 2006)


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Court no. 22

Trade Tax Revision no.  2633 Of 2004.

Commissioner, Trade Tax, U. P. Lucknow.... ... Revisionist.


Anand Kumar Proprietor, Kanpur. ...    Opp. Party.            

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of the U. P. Trade Tax Act (hereinafter referred to as the "Act"  is directed against the order of the Tribunal  dated 19.05.2004 relating to the assessment year 2000-01, by which the Tribunal has deleted the penalty levied under Section 15-A (1) (a) of the Act.

The brief facts of the case are that the Dealer/opp. party (hereinafter referred to as the "Dealer") was carrying on the business of Pan Masala containing Tobacco commonly known as Gutka.  Dealer filed monthly returns as required under Rule 41 (1) and claimed exemption on the entire turnover and had not admitted any liability of tax.  Since the liability of tax had not been admitted, no tax was deposited.  The Assessing Authority initiated penalty proceeding under Section 15-A (1) (a) on the ground that the Gutka was not exempted from tax and the dealer should have deposited the tax @ 10% applicable to the unclassified items and since the tax was not deposited, penalty was levied.   First Appeal was allowed and penalty has been deleted.  Second Appeal filed by the revenue has been rejected by the Tribunal.  The Tribunal held that the dealer was bonafidely disputing the liability of tax on the turnover of Gutka and for the same period in the case of dealer itself, exemption has been granted by the Assessing Authority in the assessment.

Heard learned Standing Counsel.

Under Section 15-A (1) (a) of the Act, penalty is imposable in case if, without reasonable cause, dealer failed to deposit tax due under this Act, before furnishing the return or alongwith the returns as required under the provisions of this Act.  Rule 41 (1) provides furnishing of returns.  Section 7 (1-A) provides that before submitting the return under sub section (1) or along with such return, the dealer shall deposit, in such manner as may be prescribed, the amount of tax due on the turnover shown in such return.  The amount of tax, due on the turnover shown in the return, was required to be deposited.  The dealer was not required to deposit the amount of tax which according to it was not due.  However, if the Assessing Authority is of the view that the return furnished by the dealer is incorrect, it is always open to the Assessing Authority to pass provisional assessment order under rule 41 (6) and raise the demand.  Without passing the provisional assessment orders under rule 41 (6), it cannot be said that the return filed by the dealer disclosing the turnover and admitting or non-admitting liability of tax is incorrect.  The penalty has been levied under Section 15-A (1) (a) of the Act merely on the ground that according to the Assessing Authority, there was liability of tax on the turnover of Gutka and the dealer should have deposited the tax @ 10%.  This approach of the Assessing Authority was wholly unjustified.  Moreover, the Tribunal held that for the same period.  The Assessing Authority has exempted the turnover of Gutka in the assessment.  In the circumstances, the Tribunal has rightly deleted the penalty.  In the facts and circumstances of the case, I do not find any error in the order of the Tribunal, which is accordingly up held.

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




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