1- Heard Sri B.K. Pandey, learned Standing Counsel for the applicant and Mrs. Mamta Singh, learned counsel for the respondent.
2- In all the above noted revisions common question of law is involved. The revisions are admitted on the following question of law :
"Whether under the facts and in the circumstances of the case the Commercial Tax Tribunal was legally justified in setting aside the penalty order passed under Section 54(1)(14) of the U.P. Value Added Tax Act, where the goods in question were not in conformity with the document as well as Transit Declaration Form produced by the dealer/opposite party before the seizing authority and the transaction in question was totally in contravention with the provision of the Act with an intention to evade tax ?"
3- With the consent of the learned counsel for the parties, all the revisions are being heard finally.
TTR No.578 of 2014 4- The facts of the case are that on 19.8.2013 a truck No.HR-55C/2066 was intercepted by the Assistant Commissioner, Mobile Squad-Vth Unit, Moradabad. On physical verification, the goods were found accompanied with a Challan No.5730 dated 16.8.2013 and two bilties Nos.24398 and 2497 both dated 16.8.2013, Invoice No.2069 dated 16.8.2013 of M/s Vinay Sales, Delhi and Invoice No.441 dated 16.8.2013 of M/s United Hardware and Paints, New Delhi, a declaration form for import (Form -16) No.1679703 of Uttarakhand State issued by M/s Mittal Enterprises, Khateema and a TDF dated 17.8.2013. On physical verification number of goods loaded in the truck were found different, as compared to the accompanied challan, invoices and TDF. Apart from this against total 206 articles mentioned in the above noted two bilties, 222 articles were found and several goods were found different in quantity or quality. Several goods mentioned in the accompanied invoice/challan were not found in the truck. Form No.16 of Uttarakhand State was found totally blank. On checking from Internet the TIN numbers of M/s United Hardware and Paints, New Delhi and M/s Vinay Sales, Delhi, both the firms were found non-existent. On these facts, penalty proceedings under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the 'Act') was initiated against the respondent and a penalty order dated 28.11.2013 imposing penalty of Rs.12,09,033/- was passed. The assessing officer also recorded a finding of fact that no evidence of carrying the goods in question and delivering it outside the State of U.P. was submitted. Despite being asked the respondent did not produce copies of form-C and the payment details. The only evidence filed by the respondent to allege that the goods reached outside the State of U.P. was the information uploaded on the website as per details of Form-16. As per the uploaded information, the respondent is a consignor, which also corroborates with the challan accompanying the goods. The other alleged consignors, namely, Vinay Sales and United Hardware and Paints, New Delhi, were found non-existent. The goods shown in the invoices are alleged to have been sold against Form-C, but the copies of Form-C were not producded.
5- On these facts, the allegations of the respondent that the goods reached outside the State of U.P., was rejected by the assessing authority.
6- Aggrieved with the penalty order, the respondent file First Appeal No.24 of 2014, which was dismissed vide order dated 2.4.2014. Against this order the respondent had filed Second Appeal No.358 of 2014, which was allowed by the Commercial Tax Tribunal, Moradabad Bench, Moradabad vide order dated 14.8.2014 on the grounds namely, that the respondent is merely a transporter and not a dealer and secondly, he discharged the burden of unloading the goods outside the State of U.P., as evident from the information of Form-16 of Uttarakhand State uploaded on the website.
7- Aggrieved with this order, the applicant has filed the present revision.
8- TTR No.579 of 2014 The facts of the case are that on the same day, i.e., on 19.8.2013 another truck No.HR-55E/2410 was intercepted by the same authority. Challan of the respondent and invoices of M/s Ramesh Plastic, Delhi and United Hardware and Paints, New Delhi, two bilties of the respondent, Form-16 of Uttarakhand State (totally blank ) issued by M/s Mittal Enterprises, Khateema and a TDF were found. In bilties 344 articles were shown for transportation from Delhi to Khateema. On physical verification, 357 articles were found which did not match with the goods mentioned in the bills and bilties. Number of articles were found short or in excess and several articles were not found loaded in the truck. Form-16 of Uttarakhand State was found totally blank. On verification, the other firms of Delhi whose invoices were accompanied with the goods were found non-existent. No payment details were submitted.
9- On these facts, vide order dated 2.12.2013, the assessing authority imposed a penalty of Rs.8,99,496/- on the ground that the respondent could not prove that the goods reached outside the State of U.P. and the consignors are non-bonafide dealer and the goods in question have been imported within the State of U.P. without any proper and genuine documents and the same has not reached outside the State of U.P.
10- Aggrieved with this order, the respondent filed First Appeal No.32 of 2014, which was rejected by the appellate authority vide order dated 28.2.2014. Against this order the respondent filed Second Appeal No.353 of 2014, which was allowed by the Commercial Tax Tribunal, Moradabad Bench, Moradabad vide order dated 14.8.2014 on the grounds namely, that the respondent is merely transporter, who has discharged his burden by submitting proof of unloading the goods outside the State of U.P. The only alleged evidence of unloading goods outside the State of U.P. was the information uploaded on the website of Uttarakhand State in Form-16 and merely on this basis the Tribunal has allowed the appeal completely ignoring the serious discrepancies/illegalities found by the assessing authority and non-production of payment details etc. by the respondent.
11- Aggrieved with this order of the Tribunal, the applicant has filed the present revision.
12- TTR No.580 of 2014 The facts of this revision are that on the same day, i.e., 19.8.2013 another truck No.HR-55L-3180 was intercepted by the same authority. Challan of the respondent and his three bilties, invoices of M/s R.S. & sons (without address ), M/s Vickky Enterprises, Delhi and M/s Mahalaxmi Traders, Delhi and Form-16 of Uttarakhand State issued by the alleged purchasers M/s Mittal Enterprises, Khateema, which was found totally blank were accompanied with the goods. A TDF was also found. The alleged firms of Delhi on verification, were found to be non-existent. In another TDF downloaded by the respondent of the same date, the route of truck was shown U.P. Boarder-Hapur-Moradabad Thakurdwara, while as per TDF produced by the driver of the vehicle, the route was shown as U.P. Boarder-Moradabad-Pilibhit. In the information uploaded in Form-16 on the Website of Uttarakhand, the name of the respondent is shown as consignor. The goods were found materially different in comparison to those mentioned in the accompanying bilties and invoices. Number of goods were found short or different in quantity/quality. Similar discrepancies as has been noted above in other revisions were also found. On these facts the assessing authority imposed penalty of Rs. 9,24,000/- under Section 54(1)(14) of the Act. First Appeal No.31 of 2014 filed by the respondents was rejected by order dated 28.2.2014. Second Appeal No.354 of 2014 filed by the respondent before the Commercial Tax Tribunal, Moradabad Bench, Moradabad, was allowed on the ground that the respondent is merely a transporter and he has discharged his burden of delivering the goods in the State of Uttarakhand.
13- Aggrieved with this order, the applicant has filed the present revision.
14- TTR No.581 of 2014 On 1.9.2014, a truck No.HR-38M/4475 was intercepted by the Assistant Commissioner, Commercial Tax, Mobile Squad-III, Moradabad. Four bilties and one Challan of the respondent and invoices of M/s Manpreet Footwear Pvt. Ltd., M/s Singh Enterprises, Delhi, M/s Rahul Printers & Packers, Delhi were found. Apart from this Form-16 (totally blank) of Uttarakhand Sate allegedly issued by M/s S.A. Enterprises, Khateema and a TDF dated 1.9.2013 were also found. On physical verification, number of articles were not found in the truck and several articles were found short or in excess. Several goods were not found. Other discrepancies were also found as noted in detail in the penalty order with respect to each invoices and challan. All the alleged firms, whose invoices were found accompanying the goods, were found non-existent. Payment details were not submitted by the respondent with respect to these goods. It could not be proved that the goods actually reached outside the State of U.P. On these facts penalty of Rs.3,20,000/- was imposed vide penalty order dated 28.11.2013. First Appeal No.29 of 2014 filed by the respondent was rejected by the appellate authority on 28.2.2014. Second Appeal No.355 of 2014 filed by the respondent before the Member, Commercial Tax Tribunal, Moradabad Bench, Moradabad was allowed vide impugned order dated 14.8.2014 on the sole ground that the respondent is merely a transporter and not a dealer and has discharged his obligation.
15- Aggrieved with this order, the applicant has filed the present revision.
16- TTR No.582 of 2014 On 19.8.2013, a truck No.HR-55-L-3225 was intercepted by the authorities. On verification, the goods were found accompanied with a challan of the respondent and invoices of M/s R.S. & Sins (without address ) and M/s V.I.P. Hardware, Delhi. Two bilties of the respondent, one Form-16 of Uttarakhand State issued to M/s Mittal Enterprises, Khateema and a TDF were also found. Against total 266 articles disclosed in the bilties, 264 articles were found in the truck. On verification, number of goods were found either different or short or in excess. Detail facts in this regard are mentioned in the penalty order. On verification, all the Delhi firms were found non-existent. No payment detail could be submitted by the respondent against the alleged invoices. Under the circumstances, a penalty of Rs.11,66,200/- was imposed by the Assistant Commissioner, Commercial Tax, Mobile Squad Unit-V, Moradabad vide order dated 28.11.2013.
17- Against this order, the applicant filed First Appeal No.23 of 2014, which was dismissed by the Appellate Authority vide order dated 2.4.2014. The respondent filed second appeal before the Commercial Tax Tribunal, Moradabad Bench, Moradabad, which was allowed by the Tribunal by the impugned order dated 14.8.2014 on the sole ground that the respondent is merely a transporter and not a dealer and has discharged his burden. Against this order the applicant has filed the present revision.
18- TTR No.583 of 2014 On 1.9.2013, a truck No.UP77-A-4038 was intercepted by the authorities. The goods were found accompanied with challan of the respondent, invoices of M/s Vinay Sales, Delhi, M/s Rama Stationers, Delhi, and M/s Singh Enterprises, Delhi. Form 16 of Uttarakhand State issued by M/s S.A. Enterprises, Khateema accompanying the goods was found totally blank. A TDF was also found. On physical verification, the goods were found unverifiable from the accompanying invoices/bilties etc. as mentioned in detail in the penalty order. On verification, all the alleged Delhi dealers were found non-existent. No payment details were produced by the respondent. On these facts penalty of Rs.4,34,240/- was imposed by the Assistant Commissioner vide order dated 28.11.2013. The First Appeal filed by the respondent was dismissed vide order dated 2.4.2014. The Second Appeal No.357 of 2014 filed by the respondent was allowed by the Commercial Tax Tribunal, Moradabad Bench, Moradabad vide impugned order dated 14.8.2014 merely on the ground that the respondent is a transporter and has discharged his burden that the goods reached outside the State of U.P.
19- Aggrieved with this order, the applicant has filed the present revision.
20- TTR No.585 of 2014 On 1.9.2013, a truck No. U.P.78-4382 was intercepted by the authorities. On a verification, the goods were found accompanied with a Challan of the respondent, invoices of M/s Santoshi Footwears, Delhi, Ramesh Plastic, Delhi, M/s Rama Stationers, Delhli and M/s Kapoor Hardware, Delhi. Form-16 of Uttarakhand State issued by M/s Mittal Enterprises, Khateem, was found totally blank. A TDF was also found. On verification, all the Delhi firms were found non-existent. No payment detail with respect to the goods in question were submitted by the respondent. The assessing authority imposed penalty of Rs.5,51,200/-.
21- Against the penalty order, the respondent preferred First Appeal No.30 of 2014, which was dismissed vide order dated 28.2.2014. Against this order, the respondent preferred Second Appeal No.356 of 2014, which was allowed by the Commercial Tax Tribunal, Moradabad Bench, Moradabad by the impugned order dated 14.8.2014 on the ground that the respondent is merely a transporter and has discharged his burden of unloading the goods outside the State of U.P.
22- Aggrieved with this order, the applicant has filed the present revision.
23- A perusal of the above noted facts in these seven revisions clearly reveals that four trucks of the respondent was intercepted on 19.8.2013 and three trucks were intercepted on 1.9.2014. These trucks were found accompanied with challan of the respondent and invoices of different alleged firms of Delhi. On verification, all the firms of Delhi were found non-existent. On physical verification, the goods loaded in the respective trucks were found different from those mentioned in the alleged invoices or the challans. Number of discrepancies were found, which are briefly mentioned above and are also recorded in detail in the respective penalty orders. As per invoices goods were shown to have been sold against Form-C. However, copies of firm-C were not produced by the respondent during the course of penalty proceedings. Even payment details could not be produced by the respondent to demonstrate the genuineness of the transaction or that the goods were actually delivered to the alleged dealers of Uttarakhand. In some Form-16 of Uttarakhand State, the respondent was shown as consignor. No proof of reaching of the goods could be submitted by the respondent at any stage of the proceedings except the alleged information uploaded on the website in form-16 of Uttarakhand State, which alone cannot be treated as a proof of reaching the goods to outside the State of U.P. Neither payment details nor copy of firm-C could be submitted by the respondent. Alleged Delhi dealers in all the above noted seven cases were found non-existent.
24- The Tribunal has completely overlooked all the documentary evidences as well as the findings recorded by the assessing authority and the first appellate authority. The Tribunal has merely relied upon the information uploaded on the Uttarakhand website in Form-16, to come to the conclusion that the goods have reached outside the State of U.P. The Tribunal allowed the second appeals merely on the ground that the respondent is merely a transporter and has discharges the burden. This finding of the Tribunal appears to be perverse, inasmuch as the challans of the respondent for the goods in all the seven transactions were found, when the truck was intercepted. The alleged dealers, whose invoices were found accompanying with the goods, were found non-existent. No payment details could be submitted by the respondent nor he could file copies of Form-C, while the goods were shown to have been sold against Form-C.
25- In view of these facts, the findings recorded by the Tribunal that the goods actually reached outside the State of U.P. and that the respondent is merely a transporter, appears to be perverse and without consideration to the relevant evidences and materials on record. The Tribunal should have considered each and every evidence which are on record and thereafter should have recorded its findings. The failure of the Tribunal to do so renders the impugned order to be unsustainable.
26- In view of the above discussions, all the revisions are allowed. The impugned orders of the Tribunal passed in the respective second appeals are hereby set aside. The second appeals are restored to its original number. The question of law is answered in negative, i.e., in favour of the applicant and against the assessee. The matter is remanded to the Commercial Tax Tribunal, Moradabad Bench, Moradabad to decide all the above noted second appeals afresh in accordance with law by a speaking and reasoned order, after due consideration to the materials and evidences available on record. Before passing the orders, the Tribunal shall also provide sufficient opportunity of being heard to the respondent.
27- In result, all the revisions succeed and are hereby allowed. The cases are remanded to the Tribunal with the directions as aforementioned.
Dt:October 15, 2014 Ak/