Court No. - 59
Case :- SALES/TRADE TAX REVISION No. - 346 of 2009 Revisionist :- M/S Vatsal And Company Najhai Bazar Opposite Party :- Commissioner Commercial Tax Counsel for Revisionist :- Aloke Kumar Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. The present revision has been filed by the applicant-assessee against the order of the Commercial Tax Tribunal dated 18.2.2009, passsed in second appeal no. 364 of 2006, for A.Y. 2004-05 (Penalty). By that order, the Tribunal has upheld the imposed penalty Rs. 12,900/- on the assessee for alleged violation of the provisions of Uttar Pradesh Tax on Entry of Goods Act, 2001 (hereinafter referred to as the 'Entry Tax Act').
2. Heard Sri Aloke Kumar, learned counsel for the applicant- assessee and Sri B.K. Pandey, learned Standing Counsel for the revenue.
3. The present revision has been pressed on the following questions of law:
"(i) Whether the Commercial Tax Tribunal can be permitted to affirm the levy of penalty on the basis of presumption without setting aside the specific finding of the First Apellate Authority according to which transaction in question finds place in the book of account?
(ii) Whether the Commercial Tax Tribunal was legally justified in affirming the levy of penalty in absence of any material which may indicate that the goods in question has been imported with intention of evasion of tax?"
4. Undisputedly, during the assessment year in question, the assessee had traded in the commodity-sugar. It had imported certain quantities from outside the State. A transaction valued at Rs. 2,14,400/- involving import of sugar was seized and later released upon furnishing security. No penalty was imposed under the U.P. Trade Tax Act, 1948, (hereinafter referred to as 'the Act') perhaps on the reasoning that the sugar was exempt under the Act. However, the assessing authority imposed penalty Rs. 12,900/- on the assessee under Section 15-A(1)(o) of the Act read with Section 6 of the Entry Tax Act. The basis of such penalty is the non-existence of import declaration form along with the goods at the time of their import into the local area. There does not exist any other allegation.
5. The first appeal authority allowed the appeal filed by the assessee on the reasoning that the payment for the entire quantity of sugar had been made through banking channel, the stock of sugar was found recorded in the books of account of the assessee and there was no requirement of Form-XXXIII to cover such a transaction.
6. However, the Tribunal has recorded a finding that the transaction of sugar had been detected and seized well inside the territory of the State and that the same was not found accompanying with proper import documents, namely the import declaration form. The Tribunal has further reasoned, by virtue of Section 6 of the Entry Tax Act, the authorities constituted under the Act were competent to impose penalty and make assessment. Thus, on such reasoning, penalty has been sustained.
7. Having heard learned counsel for the parties and having perused the record, the first ground of challenge apart, that the Tribunal has not recorded specific finding to reverse the finding recorded by the first appeal authority, however, the other finding recorded by the Tribunal is wholly erroneous and, in fact, contrary to law.
8. The fact that, under Section 6 of the Entry Tax Act, the power to make assessment and impose penalty has been vested in the authorities constituted under the Act is not material to decide the dispute between the parties. The objection raised by the assessee was not as to jurisdiction of a particular authority to impose penalty but to the complete lack of penal provision.
9. The precise objection raised by the assessee was that, unless any offence was defined under the Entry Tax Act and specific penalty provided for the same, no penalty could have been imposed on the assessee. It was in that context that, even on merits, the assessee had submitted that it was never obliged to carry import declaration form i.e. Form XXXIII, either under the Act or the Entry Tax Act.
10. While the explanation offered by the assessee, on facts, was entirely correct as there was no requirement under the Entry Tax Act to issue import declaration From XXXIII, even otherwise, in absence of any offence being defined under the Act and in absence of any penalty being provided for the same, merely because the power had been given to the assessing authority constituted under the Act to make assessments and impose penalties under the Entry Tax Act itself, it never gave rise to any punishable offence or to penalty.
11. In view of the above, while question of law no. (i) left unanswered, question of law no. (ii) is answered in the negative i.e. in favour of the assessee and against the revenue.
12. Accordingly, the present revision is allowed.
Order Date :- 26.9.2019 Prakhar