2019 (11) TMI 231 - HC - VAT / Sales Tax

Imposition of penalty - Form-31, which was accompanying the consignment of PET/ Preform/Plastic bags was blank - intent to evade tax, present or not - HELD THAT - The penalty could have been imposed upon the revisionist in accordance with Section 15A (O) which provides that the same can be levied in case the goods are being transported in contravention to the provision of Section 28A - The perusal of Section 28 A of the U.P. Trade Tax Act would indicate that it is mandatory for a person who intends to bring the import, otherwise to receive into the State from any place within the State any goods or other than the goods exempted in Clause (A) of Section 4 shall obtain a prescribed Form of declaration for payment of the prescribed fee from the Assessing Authority, having jurisdiction of the area wherein the principal place of business is situated or in case any such place where he ordinarily resides. Only because certain columns were left blank, could it be concluded that there was intention on the part of the revisionist to evade tax or that goods were being carried in contravention to the statutory provisions contained in Section 28 A of the Trade Tax Act? - HELD THAT - From a perusal of the statutory provision Section 28 A it is clear that there is no violation of statutory requirement contained therein and only carrying of Form 31 has been prescribed but there is no mention that all column should be duly filled and even from the facts on record it is abundantly clear that there was no intention to evade tax and therefore the penalty order which has been issued is clearly arbitrary and liable to be set aside - The Deputy Commissioner, Trade Tax has given a categorical finding that the goods accompanied by the Billity No. 1463/18.04.1998 wherein details of all the goods was mentioned and had further relied upon the Circular of the Department which provide that in case any columns are left blank in Form 31 the authorities concerned should fill up the said Form and release the goods. The Hon'ble Apex Court in the case of M/s. Commissioner of Sales Tax, U.P. Lucknow Vs. M/s Oriental Carbon Ltd. Ghaziabad as reported in 1997 NTN (Vol.10)-105 and a Division Bench decision of this Court in the case of M/s Rama Pulses Vs. State of U.P. Others as reported in 2009 NTN (Vol.41)-189 2009 (10) TMI 885 - ALLAHABAD HIGH COURT wherein this Court has held that the intention to evade payment of tax is Since qua non for levy of penalty and has held that the law laid down in Jain Shudh Vanaspati Ltd., is still good law to the extent that before the imposition of penalty the authority must give to the assessee a notice under the provisions of the Act to record a finding that there was an intention to evade the payment of tax. The order of the Commercial Tax Tribunal, is liable to be set-aside and is set-aside - Revision allowed.

Summary

Issues:
Challenge to Trade Tax Tribunal's order setting aside First Appellate Authority's decision and restoring penalty order.

Detailed Analysis:
The revisionist, a registered dealer manufacturing Plastic Containers, challenged Trade Tax Tribunal's order restoring a penalty for non-declaration of goods in Form 31. The revisionist had obtained Form 31 for two consignments but faced penalty due to incomplete details in the form during transportation through U.P. The First Appellate Authority set aside the penalty citing Circular No. and Section 28 A exemptions, but the Tribunal reinstated the penalty based on alleged intent to evade tax.

The Tribunal's decision was based on the belief that the revisionist attempted to evade tax by not fully declaring goods in Form 31. The Standing Counsel argued that the blank Form 31 indicated intent to evade tax, justifying the penalty. However, the Court analyzed the situation, noting that the Truck driver carried a Billity/GR Form with full details despite the incomplete Form 31.

The Court reviewed Section 28 A, emphasizing that obtaining Form 31 was essential, but there was no explicit requirement to fill all columns. The revisionist's actions did not indicate tax evasion, challenging the penalty's validity. The Tribunal's dismissal of the First Appellate Authority's findings lacked detailed reasoning, leading to an erroneous decision.

Citing legal precedents, the Court highlighted that mere Section 28 A breaches were insufficient for penalties without proving deliberate tax evasion. The Deputy Commissioner's findings and reliance on Department Circular supported the revisionist's case, emphasizing the need for clear intent to evade tax before imposing penalties.

Relying on past court decisions, the Court emphasized the necessity of proving intent to evade tax before penalizing. The Tribunal's decision lacked sufficient reasoning and contradicted available evidence, leading to the revision being allowed, and the penalty set aside with a refund directive within six months.