Court No. - 1
Case :- SALES/TRADE TAX REVISION No. - 1021 of 2008 Revisionist :- M/S Dhirendra Prasad Motors Parts Allahabad Opposite Party :- Commissioner Trade Tax U.P. Lucknow Counsel for Revisionist :- Rishi Raj Kapoor,Krishna Agarwal Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. The present revision has been filed by the assessee against the order of the Trade Tax Tribunal, Allahabad dated 08.11.2005 passed in Second Appeal No.290 of 2004 for A.Y. 2001-02 under Section 15A(1)(o) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act) whereby the Tribunal has upheld the penalty of Rs.48,750/- imposed on the assessee.
2. The present revision has been heard on the following question of law:
"Whether any penalty under Section 15A(1)(o) of the Act could have been imposed on the assessee merely because the assessing officer was of the view that the goods were old motor parts taxable @ 12.5% whereas the assessee had disclosed those goods as scrap taxable @ 4% in the invoice as also import declaration form?"
3. Heard Sri Krishna Agarwal, learned counsel for the assessee and Sri B.K. Pandey, learned Standing Counsel for the revenue.
4. Short submission advanced by learned counsel for the assessee is that it is undisputed fact in the present case that the assessee was found to be importing the goods in question accompanied with proper regular invoice, transport documents and duly filled import declaration form 38 issued under the Act.
Also, it is not disputed that the goods being imported by the assessee were old that is used car bodies, used motor parts, etc. None of the goods being imported were new. In such facts, it has been submitted that sufficient and clear disclosure had been made by the assessee for the purpose of compliance of law to import the goods into the State and the matter with respect to taxing entry in which they may fall would remain a matter to be considered during the assessment proceedings. Insofar as the assessee had made due disclosure of the goods there survived no suspicion whether there was intention to evade tax.
5. Learned Standing Counsel on the other hand would submit, since the assessee had not disclosed that the goods being imported by it were motor parts, the same would have escaped assessment if the detection had not been made at the entry check post. Therefore, there was clear intention to evade tax.
6. Having heard learned counsel for the parties and having perused the record, in the first place, in the present case, the finding on intention to evade tax has been drawn purely inferentially only because according to the assessing authority, the goods were motor parts taxable @ 12.5% whereas according to the assessee they were scrap liable to be taxed @ 4%. Had the goods been new, the case would have been completely otherwise. However, again, it is admitted to the revenue that the goods were old whereas there is no taxing entry to treat old motor parts separately. In such facts, it appears, that the assessee had bona fide disclosed the goods as scrap since they had been taken out from used motor vehicles.
7. Consequently, the assessee is found to have made due disclosure of the goods. The exact treatment of the goods for the purpose of assessment would remain a matter to be considered in those proceedings alone.
8. At present, the only relevant fact to be examined was whether the assessee had disclosed the goods in the import document and whether there was any intention to evade tax.
9. As noted above, due disclosure was existing and there is no material found existing as may have led the assessing authority to form an opinion that there was an intention to evade tax.
10. Inference of intention to evade tax was drawn based on surmises and conjectures and not on any material and evidence on record.
11. Accordingly, the present revision is allowed. The question of law, as framed above, is answered in the negative i.e. in favour of the assessee and against the revenue.
Order Date :- 30.7.2019 Abhilash