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S/S S.B. INDUSTRIES versus THE COMMISSIONER, TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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S/S S.B. Industries v. The Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 836 of 2006 [2006] RD-AH 19512 (17 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 22

Trade Tax Revision no.  836 Of 2006.

S/S S. B. Industries, Varanasi. ... Revisionist.

Versus

The Commissioner, Trade Tax, U. P. Lucknow..... 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 14th    September, 2005 relating to the assessment year 1992-93.

Applicant was engaged in the business of manufacture and sale of Coal Briquettes.  Raw material was Coal, which was imported from outside the State of U. P.  The Assessing Authority levied the penalty under Section 15-A (1) (o) of the Act at Rs.2,20,000/- on the ground that the applicant had imported 4912.92 Metric Tone Coal without Form 31.  Applicant contended that said Coal were imported after making voluntary declaration at the Check Post on deposit of security.  The Assessing Authority while levying the penalty, observed as follows:-

"O;kikjh us dqN dks;ys ds vk;kr fd;s tkus ds lEcU?k esas Lo;a ?ksk"k.kk djds tekur tek dj dks;ys dk vk;kr fd;k tkuk iznf'kZr fd;k] Lo;a ?ksk"k.kk djds dks;yk vk;kr fd;s tkus ls O;kikj dk vijk/k de gks tkrk gS k" ""

Against the penalty order, applicant filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Varanasi.  The Deputy Commissioner (Appeals), Trade Tax, Varanasi vide order dated 29.4.2000 allowed the appeal and set aside the order.  The Appellate Authority held that the Assessing Authority itself found that the goods were imported after voluntary declaration at the Check Post, which reduces the gravity of the offence.  The Appellate Authority observed that the goods have been entered in the books of account and there was no case any malafide intention.  The Commissioner of Trade Tax filed appeal before the Tribunal.  The Tribunal by the impugned order, allowed the appeal and restored the order passed by the Assessing Authority.  The Tribunal held that the applicant had disclosed that 38 Form-31 have been lost, but it was found that the goods against 12 Form-31 were imported, which were not found entered in the books of account.  The Tribunal held that since the goods were imported without the declaration Form, there was violation of Section 28-A of the Act and accordingly, the penalty levied by the Assessing Authority was up held.

Heard learned Counsel for the parties.

Learned Counsel for the applicant submitted that since in respect of goods imported without Form 31, voluntary declaration was made at the Check Post and security was deposited, there was no attempt to evade the tax.    He submitted that after import of the goods, necessary entries were made in the books of account and the purchases were disclosed during the course of the assessment proceeding and it was from the disclosure of the applicant, Assessing Authority came to know about the import of the goods without declaration Form thus, in the absence of an attempt to evade tax, levy of penalty is not justified.  In support of his contention, he relied upon the decision of this Court in the case of Jay Pee Rewa Cement, Allahabad Versus Commissioner of Trade Tax reported in 2006 UPTC page 484.  Learned Standing Counsel relied upon the order of the Tribunal.

I have given my anxious consideration to the rival submissions.

This Court in the case of M/S Oriental Carbon Ltd. Vs. Commissioner of Sales Tax reported in 1985 UPTC page 613, held that the penalty under Section 15-A (1) (o) of the Act cannot be levied unless a case of an attempt to evade the tax, is made out.  The judgment of this Court has been up held by the Apex Court in the case of Commissioner of Sales Tax Vs. M/S Oriental Carbon Vs. reported in 1997 NTN, 105.  Thus, penalty under Section 15-A (1) (o) of the Act, cannot be levied unless a case of an attempt to evade the tax, is made out.  

In the case of M/S Jain Sudh Vanaspati Vs. State of U. P. reported in 1983 U.P.T.C., 198, the Division Bench of this Court held that the goods under Section 28-A cannot be seized and the penalty under Section 15-A (1) (o) can not be levied merely because, goods was not accompanied by a declaration Form, unless there is a case of an attempt to evade tax.  

In view of the above principle of law, it is to be examined whether there was any attempt to evade the tax.  If the applicant made a voluntary declaration at the Check Post, imported the goods after depositing the security, in my view, there was no case of an attempt to evade the tax.  The Assessing Authority in its order, observed that some of the Coal were imported after making a voluntary declaration on the deposit of security.  This observation has not been considered by the First Appellate Authority while deciding the appeal.  The Tribunal has up held the penalty on a wrong premises which is contrary to the principle of law laid down by this Court as well as by the Apex Court as referred hereinabove.  Thus, on the facts and circumstances of the case, it is required to be considered that how much Coal were imported after making a voluntary declaration at the Check Post and how much Coal were imported without voluntary declaration at the Check Post.  This aspect of the matter requires investigation and consideration by the fact finding authority, which may appropriately be done by the Assessing Authority.  In the circumstances, matter is remanded back to the Assessing Authority to make enquiry as stated above and pass appropriate order in accordance to law.

In the result, revision is allowed.  Order of the Tribunal 14.9.2005 in Appeal no. 406 of 2000 for the assessment year 1992-93 is set aside and the matter is remanded back to the Assessing Authority to pass appropriate order in accordance to law in the light of observations made above after giving proper opportunities of hearing to the parties.

Dt:17.11.2006.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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