Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 812 of 2011 Applicant :- Yakub Khan Opposite Party :- Commissioner Commercial Tax Lko.
Counsel for Applicant :- Aloke Kumar Counsel for Opposite Party :- S.C.
Hon'ble Saumitra Dayal Singh, J.
1. The present revision has been filed by the assessee against the order of the Commercial Tax Tribunal, Agra dated 04.05.2011 in Second Appeal No. 213 of 2011 (A/Y 2010-11) (Penalty).
2. The revision has been heard on the following questions of law:
"(i) Whether penalty under Section 54(1)(15)(i) of the Uttar Pradesh Value Added Tax Act, 2008 may be imposed solely in absence of Transit Declaration Form or such penalty may be imposed only in absence of documents referred to under Section 52 and also upon failure of the assessee to establish that the goods were meant for delivery outside the State?
(ii) Whether in absence of any evidence that the goods had been delivered inside the State of Uttar Pradesh or that they were not meant for delivery to the dealer outside the State of Uttar Pradesh, any penalty could have been imposed?"
3. In short, the assessee is the owner of the truck bearing registration No HR-38 P-9788. Admittedly, the said truck was detained at Mathura on 26.08.2010 during the course of transportation of goods. A penalty notice under Section 54(1)(15) of the Uttar Pradesh Value Added Tax Act, 2008 (hereinafter referred to as the 'Act') was issued to the assessee. At the time of checking, the truck was found loaded with 26400 kg. of the commodity "Moong Daal". It was also found accompanied with G.R., tax invoice and goods receipts. According to those documents, the goods had been sold by one M/s. Prashant Prakash Lal Gandhi, General Merchant and Commission Agent, Sale Hall No.1, Shot Nos.2 and 3, Market Yard, Ahmednagar on 23.08.2010 to M/s. Om Prakash Ashok Kumar, at Delhi.
4. It was the case of the revenue that though the goods had been detained and the truck along with goods parked inside Police Station Mathura Refinery, Mathura, the driver of the truck, without being permitted, drove away the truck. An FIR is also said to have been lodged against the driver of the truck in that regard.
5. In these circumstances, the penalty notice further raised an allegation that the assessee had sold the goods inside the State of Uttar Pradesh and thereby contravened the provisions of the Act. However, the notice itself was issued under Section 54(1)(15) of the Act. For ready reference, the provisions of Section 54(1)(15) of the Act are quoted below:
"54. Penalties in certain cases.- (1) The assessing authority, if he is satisfied that any dealer or other person, as the case may be, has committed the wrong described in column 2 of the table below, it may, after such inquiry, if any, as it may deem necessary and after giving dealer or person reasonable opportunity of being heard, direct that such dealer or person shall, in addition to the tax, if any, payable by him, pay by way of penalty, a sum as provided in column 3 against the same Serial No. of the said table:
(i) fails to fails to carry documents referred to in Section 52 and also fails to prove that goods carried in his vehicle are meant for delivery to dealers or persons outside the State; or
(ii) While carrying such documents for transit of goods through the State undertakes responsibility of handing over such goods to a bona-fide person inside the State for carrying them outside the State but fails to handover such goods to such bonafide person;
(iii) being a person, who receives any goods from driver or person in charge of a vehicle
6. Clearly, the allegation made against the assessee appears to be one referable to Section 54(1)(15)(i) of the Act.
7. The assessee replied to the aforesaid notice and also filed his personal affidavit as also the affidavit of the driver of the truck to establish that though the goods had been detained by the mobile squad, they were allowed to proceed under oral permission of the sales tax authorities and the civil police. In any case, it is submitted that the fact that the assessee/driver may have driven away the truck, would not give rise to a penalty under Section 54(1)(15) of the Act. For the purpose of the penalty proposed to be imposed, what was relevant to be examined was whether the assessee had failed to carry the documents referred to in Section 52 of the Act and whether he had further failed to prove that the goods carried were meant for delivery to dealers or persons outside the State. Insofar as the first requirement of Section 54(1)(15)(i) is concerned, it is submitted that barring the Transit Declaration Form (TDF) that had not been downloaded by the driver, the other documents, namely tax invoice and goods receipts were accompanying the good as has also been recorded in the penalty notice itself. No discrepancy had been noted either in the description of the goods or documents found accompanying the same. It is therefore submitted that the omission to carry the TDF was not intentional but only accidental. In any case, it has been submitted that mere absence of TDF, would not satisfy the condition for imposition of penalty, inasmuch as, the Act further requires that failure to carry the documents must be accompanied with a failure to prove that the goods were meant for delivery outside the State. The assessee had established both at the stage of detention as also subsequently by way of his reply that the goods were actually delivered to M/s. Om Prakash Ashok Kumar at Delhi. There did not survive any occasion or justification for imposition of penalty under Section 54(1)(15) of the Act. In this regard, reference has been made to the reply furnished by the assessee as also to the affidavit filed in support thereof.
8. The Tribunal, while sustaining the penalty, has disregarded the evidence/documents filed by the assessee to establish that the goods were delivered to the dealer outside the State of Uttar Pradesh, on the reasoning that the dealer had common interest and therefore the certification has been disregarded.
9. However, no positive evidence was led by the revenue to establish either that the goods were originally not meant for transportation to the dealer M/s. Om Prakash Ashok Kumar, at Delhi or that the goods had actually not been delivered to the dealer or that the goods had actually been delivered inside the State of Uttar Pradesh.
10. A finding has thus been recorded on a presumption arising solely on account of the fact that according to the revenue, the driver of the truck had driven away the truck without any permission. While the conduct of the driver of the truck, as alleged by the revenue, even if is found to be true, may result in other penalties including one under Section 54 (1)(22) of the Act, however, in face of evidence that the goods were meant for being transported from outside the State of Uttar Pradesh to outside State of Uttar Pradesh, no penalty may arise merely because of that conduct offered by the driver of the truck. It may have been another case if some evidence may have been led by the revenue to establish that the claim made by the assessee was wrong and/or false. However, at present, it is seen that at the stage of detention of goods itself, the assessee had disclosed the exact value and quantity of goods along with details of the seller and the purchaser both of whom were located outside the State of Uttar Pradesh. The documents that were produced by the assessee by way of proof to disbelieve the allegation of transaction again pertains to same two dealer, with respect to the same commodity and quantity of the goods.
11. Therefore, in the first place, the assessee appears to have discharged the burden cast on him to prove that the goods were transported from outside the State of Uttar Pradesh and that they had actually been delivered outside the State, as disclosed in the tax invoice. On the other hand, the revenue has failed to lead any evidence to prove the charge under Section 54(1)(15)(i) of the Act. This being penalty proceedings, in any case, the burden lay on the revenue to establish the essential facts that may have given rise to the penalty proceedings.
12. In view of the fact that no such evidence was led, the imposition of penalty has wrongly been upheld. The ingredients of the penalty were not made out and therefore the assessee could not have been penalised for the same.
13. In view of the above, the questions are answered in favour of the assessee and against the revenue.
14. Accordingly, the revision is allowed and the order dated 04.05.2011 passed by the Commercial Tax Tribunal, Agra in Second Appeal No. 213 of 2011 is set aside. Any amount that may have been deposited in compliance with the penalty order, may be released in favour of the assessee.
Order Date :- 19.12.2018 AHA