Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 409 of 2009 Revisionist :- M/S Vats Sports And Waers Opposite Party :- The Commissioner Of Commercial Tax U.P. Lucknow Counsel for Revisionist :- Rakesh Ranjan Agrawal,Suyash Agarwal Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. The present revision has been filed against the order of the Commercial Tax Tribunal, Meerut dated 18.03.2009 in Second Appeal No.82 of 2005 for A.Y. 2003-04 (penalty), filed by the revenue. By that order, the Tribunal has allowed the revenue's appeal and restored the penalty order passed under Section 13-A(4) of the UP Trade Tax Act, 1948 (hereinafter referred to as the 'Act'), by which penalty Rs.28,350/- had been imposed.
2. During the assessment year in question, the applicant- assessee had started business of manufacture and sale of sports apparel. It claimed that since registration number was granted to the assessee during that year itself, it made use of the printed books by stamping the registration number thereon. However, with respect to one transaction dated 04.11.2003 Invoice No.35 by which sports apparel had been sold to a purchaser in Punjab remained from being stamped. These goods were subjected to seizure and penalty proceedings. Vide penalty order dated 30.09.2004, a penalty of Rs.28,350/- was imposed on the assessee. The assessee challenged the same and in First Appeal No.528 of 2004 which came to be allowed by order dated 10.11.2004. The first appellate authority recorded the finding to the effect that the transaction was found recorded in the books of accounts of the assessee, and that payment had also been made through banking channel. On that another reasoning, the penalty imposed was deleted. The revenue appealed against that order before the Tribunal.
3. During pendency of the revenue's appeal before the Tribunal, the Assessing Authority concluded the assessment proceeding vide order dated 08.02.2006 wherein he accepted the books of accounts of the assessee. That order has attained finality.
4. It is in such facts, that the Tribunal has reasoned, that though the books of accounts of the assessee came to be accepted in the assessment proceedings, yet that acceptance of books was based solely on the fact that the penalty under Section 13-A(4) of the Act, had in the mean time, been deleted by the first appellate authority. Since, the Tribunal was hearing the appeal arising from the penalty proceeding, it has drawn independent conclusion and allowed the revenue's appeal.
5. The present revision has been pressed on the following question of law:-
"Whether in face of undisputed fact that in the assessment proceeding, the assessee's books of accounts should have been accepted, the Tribunal could have recorded a conflict finding with respect to penalty imposed under Section 13-A(4) of the Act."
6. Heard Sri Suyash Agarwal, learned counsel for the applicant-assessee and Sri B.K. Pandey, learned Standing Counsel for the revenue.
7. Having heard learned counsel for the parties and having perused the record, whatever be the reason recorded by the Assessing Authority, it is undisputed that in the assessment proceeding got concluded by order dated 08.02.2006 wherein the books of accounts of the assessee had been accepted. That order attained finality and it was never revised.
8. Once the books of accounts of the assessee stood accepted, though in pursuance of the first appellate order passed in penalty proceeding, it is difficult to allow the Tribunal to record a finding which in effect is completely conflicting with the findings recorded by the Assessing Authority in the assessment proceedings. Such conflicting conclusion for the same assessment year cannot be allowed to co-exist. If allowed, it would result in the books of accounts of the assessee remaining accepted for the purposes of assessment, yet the same would have to be necessarily treated as unreliable for the purposes of penalty proceedings.
9. Since, the assessment proceedings have attained finality wherein the books of accounts of the assessee stand accepted, the question of law as framed above is answered in negative i.e. in favour of the assessee and against the revenue.
10. Accordingly, the revision is allowed.
Order Date :- 30.9.2019 S.Chaurasia