Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 1054 of 2009 Revisionist :- Indo Asian Fusegear Ltd.
Opposite Party :- Commissioner Of Commercial Taxes Counsel for Revisionist :- R.P. Mullick,Nishant Mishra Counsel for Opposite Party :- C.S.C.
With Case :- SALES/TRADE TAX REVISION No. - 1111 of 2009 Revisionist :- Indo Asian Fusegear Ltd.
Opposite Party :- Commissioner Of Commercial Taxes Counsel for Revisionist :- P.R. Mullick,Nishant Mishra Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. These revisions have been filed by the assessee against the common order of the Commercial Tax Tribunal, Saharanpur dated 16.07.2009 passed in Second Appeal No. 224 of 2008 for A.Y. 2007-08, arising from penalty proceedings under Section 15-A(1)(q) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the 'Act') and Second Appeal No. 223 of 2008 for A.Y. 2007-08 (U.P.), arising from proceedings under Section 7(4) of the Act. By that order, the Tribunal has dismissed both the appeals filed by the assessee and affirmed the penalty and assessment of tax on the value of goods, alleged to have been illegally imported and sold by the assessee.
2. Briefly, the assessee is a manufacturer of Fuse Gears. It has two units - one at Haridwar in the State of Uttarakhand and the other at Parwanoo in the State of Himachal Pradesh. It has no place of business inside the State of U.P. On 20.06.2007, it had dispatched, by road, 194 boxes of semi finished goods valued at Rs. 13,95,810/- from its unit at Parwanoo to its unit at Haridwar. The goods were dispatched through a truck bearing registration no. HP 15-B/0281. Those goods were never subjected to any detention or seizure proceedings under the Act.
Also, it is a fact that, at the relevant time, the driver of the aforesaid truck obtained a transit pass bearing no. 2097 dated 20.06.2007 for transportation of the aforesaid goods through the State of U.P. While that transit pass had been issued from the entry check post at Shajahanpur, the same was to be surrendered on 21.06.2007 at Badkala check post.
3. While the goods are claimed to have passed through the State of U.P., solely on account of non-discharge of Transit Pass 2097 dated 20.06.2007, a presumption was drawn by the assessee authority of the goods having been illegally imported and sold inside the State of U.P. Accordingly, penalty Rs. 6,70,000/- under Section 15-A(1)(q) of the Act was imposed vide order dated 30.09.2007. Also, that event resulted in a consequential assessment order being passed in the case of the assessee on the same date.
4. While the appeal authorities have upheld the penalty order and the assessment order, the present revisions have been pressed on the following questions of law:
"Whether the presumption under Section 28-B of the U.P. Trade Tax Act, 1948 being rebutable, there was any occasion to either levy penalty or impose tax on the assessee when the evidence of completion of transit of the goods had been submitted by the assessee in the shape of Form-F as also a certificate issued by the assessing officer at Haridwar?"
5. Heard Shri Nishant Mishra, learned counsel for the assessee and Shri B.K. Pandey, learned Standing Counsel for revenue.
6. Having heard learned counsel for the parties and having perused the record, though, a technical breach had been committed by the assessee, at the same time, it remains on record that the transaction came to be covered by Form-F issued under the Central Sales Tax Act, 1956 by the Haridwar Branch of the assessee to its Parwanoo Branch. Also, the assessing authority of the assessee at Haridwar appears to have certified the fact that the goods giving rise to the present revisions had, in fact, been transported to Haridwar. As against this, there is no evidence produced by the revenue authorities to establish that the goods were not transported outside the State, as disclosed in the transit pass.
7. Undisputedly, the presumption existing under Section 28-B of the Act is rebutable as held in M/s. Sodhi Transport Co. & Anr. Vs. State of U.P. & Anr., 1986 UPTC 721.
8. In the facts of the present case, the assessee had rebutted the presumption by means of its own statement, the certificate of the assessing officer and more importantly Form-C issued under the Central Sales Tax Act, 1956. In absence of any evidence to rebut or doubt the same and in absence of any other evidence being brought on record by the revenue, the presumption under Section 28-B of the Act stood discharged and there remains no basis either for the imposition of penalty or tax.
9. Accordingly, the question of law is answered in the negative, i.e. in favour of the assessee and against the revenue.
10. Revisions are allowed.
Order Date :- 27.9.2019 AHA