2019 (1) TMI 309 - HC - VAT and Sales Tax

Penalty u/s 54(1)(14) of the U.P. VAT Act - no intent to evade - validity of remand order - Held that - It could not be denied by learned Standing Counsel that the First Appellate Authority had recorded a finding that the penalty notice insofar as it had been issued solely on account of security money not been deposited by the assessee was not proper. Once that finding had arisen and been recorded by the First Appellate Authority, there did not survive any further issue as may have resulted in a direction of remand notwithstanding with the fact that the proceedings upto the stage of imposition of penalty had been conducted exparte against the assessee. For the purpose of imposing penalty, the burden clearly lay on the revenue authority to issue a proper notice bringing out the charge of violation alleged against the assessee. Once the First Appellate Authority found that the allegation did not constitute offence of violation, the matter had to rest there - The discretion is always with the Assessing Authority while issuing the notice to examine the matter and frame such charge against the assessee as it felt proper. Once the charge had been framed, there is no room for seeking improvement that too at the stage of first appeal. Once the penalty notice has been found to be wanting in ingredients of offence, that is absence of charge of intention to evade tax, there did not exist any room to allow a second/fresh opportunity at the stage of appeal or to allow the Assessing Authority to issue a fresh notice to level all fresh charge - revision allowed - decided in favor of assessee.

Summary

Issues:
1. Interpretation of the Tribunal's decision on remand order for fresh penalty under Section 54(1)(14) of the U.P. VAT Act.
2. Validity of the remand order passed by the First Appellate Authority.
3. Adjudication of specific issues raised by the applicant.
4. Competence of the penalty notice issued to the assessee.
5. Burden of proof on the revenue authority for imposing penalty.

Analysis:
1. The revision was filed against the Commercial Tax Tribunal's order, challenging the remand for a fresh penalty under Section 54(1)(14) of the U.P. VAT Act. The Tribunal affirmed the remand without addressing the specific issue raised by the applicant regarding the validity of the remand order. The First Appellate Authority had set aside the penalty order and directed the Assessing Authority to issue a fresh penalty notice, which was challenged by the assessee.

2. The assessee argued that once the First Appellate Authority found the penalty notice defective for not containing grounds to impose penalty, there was no basis for remanding the matter for a fresh notice. The revenue was given an opportunity to rectify the defective notice, which the assessee contended was unwarranted. The Tribunal did not adjudicate on the specific issues raised by the applicant, leading to ambiguity in the decision-making process.

3. The First Appellate Authority's finding on the incompetence of the penalty notice was crucial. The burden of proof lay on the revenue authority to issue a proper notice outlining the alleged violation by the assessee. Once the allegation did not constitute an offense, there was no justification for further proceedings or issuing a fresh notice. The discretion to frame charges against the assessee rested with the Assessing Authority, and once charges were framed, there was no room for amendments or improvements during the appeal stage.

4. The Court concluded that the penalty notice lacked the essential ingredients of the offense, specifically the absence of a charge of intention to evade tax. Therefore, there was no basis for allowing a second opportunity for the revenue to issue a fresh notice with new charges. The revision was allowed in favor of the assessee, emphasizing that once a notice was found deficient, no further actions could be taken to rectify the situation during the appeal process.

5. The judgment highlighted the importance of a valid and competent penalty notice, emphasizing that the burden of proof lies with the revenue authority to establish the grounds for imposing a penalty. The decision provided clarity on the procedural aspects of penalty imposition under the U.P. VAT Act, ensuring that due process and legal requirements are met before penalizing an assessee.