2018 (10) TMI 1246 - HC - VAT and Sales Tax

Imposition of penalty u/s 15A(1)(o) of the Act 1948 - alleged violation of section 28-A of the Act 1948 - Transit Declaration Form (TDF) not accompanied the goods at the check post - case of revisionist dealer is that this was just a technical lapse and all necessary was fulfilled on being pointed out, there was no mala fide intent, hence penalty should not be imposed - case of Revenue is that TDF though filed later on, was not presented at requisite centre entailed violation of section 28-A and that entry-tax was not deposited on the imported goods, there fore penalty was warranted. Held that - For the purposes of section 28-A sub-sections (2), (6) and (8) of section 13-A relating to seizure of goods apply mutatis mutandis to the detention of goods referred therein in view of sub-section (7) of section 28-A. Now, if there is violation of section 28-A, then the penalty is imposed under section 15-A - in this case under clause (1)(o) of section 15-A, as, there was contravention of the provisions of section 28-A while importing or transporting the goods. - The penalty referred under section 15-A is to be imposed after such inquiry, if any, as the Assessing Authority deems necessary. The question as to whether mens rea or malintent to evade tax is necessary for imposition of penalty under the aforesaid provisions, came up for consideration before a Division Bench of this Court in the case of M/s Oriental Carbon Ltd. 2010 (12) TMI 1075 - ALLAHABAD HIGH COURT , wherein it was held that mere breach of provision of section 28-A would not be sufficient for imposition of penalty under section 15-A(1)(o) of the Act 1948, meaning thereby malintent i.e. the intent to evade tax was necessary for imposition of such penalty. There are a catena of decisions of this Court wherein it has been held that for imposition of penalty under section 15(1)(o) of the Act 1948 the intent to evade tax i.e. a malintent, is necessary. Even otherwise, in the present case the record reveals that the Assessing Authority recorded a categorical finding that there was no malintent on the part of the revisionist to evade tax yet it imposed penalty on the ground that there was violation of section 28-A. The First Appellate Authority held that there was an intention to evade Entry Tax (not a tax under the Act 1948 under which the proceedings were being held). This conclusion was arrived at by the first Appellate Authority merely because the declaration form -31 which admittedly was duly filled and complete, could not be produced by the driver of the vehicle at the check-posts - this Court is of the view that the evasion of tax intended had to be of a tax under the Act 1948 and not any other enactment as the penalty proceedings were under section 15(1)(o) read with section 28-A of the Act 1948 and not under any other enactment, therefore, for the First Appellate Authority and the Tribunal to record a conclusion that the nonproduction of Form-31, though it was duly filled and complete, but was not produced at the check-posts established the intent to evade Entry Tax cannot be a ground for sustaining the penalty proceedings under the Act 1948. Entry Tax was leviable under a separate enactment. This Court is also of the view that once the Tribunal and other authorities have held that the consignment was accompanied by the requisite documents and Form-31A duly filled and complete then there was no question of misuse of the said form nor could there be any intent to evade tax under the Act 1948 as such reasoning given by the Tribunal in this regard is not sustainable on this count especially in view of plethora of decisions where, in similar situations, similar conclusions have been arrived at. It is based on conjectures and surmises and is not sustainable on facts and in law. The impugned orders are hereby quashed - The Assessing Authority is directed to refund the amount, if any, deposited by the revisionist towards penalty in pursuance to the impugned orders - Revision allowed.

Issues Involved:
1. Imposition of penalty without intent to evade tax.
2. Technical breach of Section 28-A and its implications.
3. Non-production of Form-31 and its consequences.
4. Levy of penalty under Section 15A(1)(o) for technicalities without intent to evade tax.

Analysis:

1. Imposition of Penalty Without Intent to Evade Tax:
The primary issue revolves around whether a penalty can be imposed under Section 15A(1)(o) of the U.P. Trade Tax Act, 1948, without the intent to evade tax. The court referred to the precedent set in the case of CTT vs. M/s Oriental Carbon Limited, Ghaziabad, which was affirmed by the Supreme Court. It was held that "mere breach of provision of section 28-A would not be sufficient for imposition of penalty under section 15-A(1)(o)" and that "malintent i.e., the intent to evade tax was necessary for imposition of such penalty."

The court noted that the Deputy Commissioner accepted that there was no malintent or mens rea in the transaction but still imposed a penalty, which was later upheld by the Joint Commissioner and the Tribunal without cogent reasons. The court emphasized that the finding of the Deputy Commissioner that there was no malintent should have been given due consideration.

2. Technical Breach of Section 28-A and Its Implications:
The court examined the technical breach of Section 28-A, which mandates the submission of a declaration form at check-posts. The driver of the vehicle failed to produce the declaration form at the check-post, which led to the suspicion of intent to evade Entry Tax. However, the court found that the declaration form and other documents were complete and valid, and the failure to submit the form at the check-post was a technical lapse without any malintent.

The court reiterated that "for imposition of penalty under section 15(1)(o) of the Act 1948, the intent to evade tax i.e., a malintent, is necessary." It concluded that a technical lapse without intent to evade tax should not result in the imposition of a penalty.

3. Non-Production of Form-31 and Its Consequences:
The court addressed the issue of non-production of Form-31 at the check-post. It was argued that the non-production of the form indicated an intent to evade tax. However, the court found that the form was duly filled and complete, and the goods were not intended for sale but for expanding telecommunication services.

The court cited various decisions, including M/s Hyderabad Industries Vs. CTT and Pepsico India Limited, which supported the contention that mens rea is necessary for imposing a penalty under Section 15-A read with Section 28-A. The court concluded that the non-production of Form-31, in this case, was a technical lapse without any intent to evade tax.

4. Levy of Penalty Under Section 15A(1)(o) for Technicalities Without Intent to Evade Tax:
The court analyzed whether a penalty under Section 15A(1)(o) can be levied for mere technicalities without intent to evade tax. It referred to the decision in M/s Oriental Carbon Ltd., which held that "malintent or the intention to evade tax under the Act 1948 is essential for attracting a penalty under the aforesaid provisions."

The court noted that the First Appellate Authority and the Tribunal erred in sustaining the penalty based on an alleged intention to evade Entry Tax, which was not under the Act 1948. It emphasized that "the evasion of tax intended had to be of a tax under the Act 1948 and not any other enactment."

The court quashed the impugned orders and directed the Assessing Authority to refund the amount deposited by the revisionist towards the penalty. The questions of law were answered in favor of the revisionist-assessee, and the revision was allowed.

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