2020 (2) TMI 682 - HC - VAT and Sales Tax

Imposition of penalty under Section 54(1) (14) of UP VAT Act - sufficient compliance of section 50 of the Act or not - consignment was accompanied with unfilled Form-38 - intent to evade tax or not - HELD THAT - As per scheme of the Act, 2008 any person, who intends to bring, import or otherwise receive, into the State from any place outside the State any goods other than goods named, and described in schedule-I in such quantity or measure or of such value, as may be notified by the State Government in this behalf, in connection with business, shall either obtain the prescribed form of declaration, in such manner as may be prescribed, from the assessing authority having jurisdiction over the area, where this principal place of business is situated or in case there is no such place, where he ordinarily resides or shall down load from official website of the department in the manner as may be prescribed under Rule 58 or 59. In the instant case it is admitted fact that the revisionist had duly applied for and obtained Form 38 for import of goods and the Column 1 to 4 of the said Form was left blank on account of negligence of the revisionist. It is only on account of non filling of Column 1 to 4, penalty has been imposed upon the revisionist. It has been submitted on behalf of the revisionist that there was no intention to evade tax and the driver of the vehicle carrying the goods was carrying all the relevant documents including the bill/challan/bilty etc. from which the details of goods being carried on the vehicle could have been verified by the officer concerned and therefore there was no occasion for the assessing officer to pass penalty order and also that the grounds were non taxable, inasmuch as there was no intention on the part of the assesee to evade tax. Non-filling up of column no. 1 to4 i.e. not mentioning of bill / cash memo / chalan / invoice number may lead to an inference that in case of non-checking of goods the declaration form may be re-used for importing goods of same quantity, weight and value to evade payment of tax but it cannot be the sole ground to impose penalty under Section 54(1)(14) of the Act, 2008 - In the present case also the vehicle was accompanied by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering that some column of Form 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods. The Tribunal has only observed that non-filing of various columns in Form 38 indicates that there was intention to evade tax and only this ground rejected the appeal of the assessee. The Tribunal has not correctly applied the law in this regard, as they have not given any finding about the intention to evade tax, which is a precondition for imposition of penalty - Revision allowed.

Issues Involved:

1. Imposition of penalty under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008.
2. Compliance with Section 50 of the U.P. Value Added Tax Act, 2008.
3. Intention to evade tax due to unfilled Form-38.
4. Validity of the penalty imposed by the Assessing Authority.
5. Tribunal’s interpretation of the law regarding tax evasion.

Issue-wise Detailed Analysis:

1. Imposition of Penalty under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008:
The revisionist challenged the penalty imposed under Section 54(1)(14) for transporting goods with an unfilled Form-38. The Mobile Squad Authority intercepted the vehicle and found that certain columns in Form-38 were blank, raising suspicion of tax evasion. The Assessing Authority issued a show cause notice and, after considering the reply, imposed a penalty of ?3 Lakhs, which is 40% of the value of the goods.

2. Compliance with Section 50 of the U.P. Value Added Tax Act, 2008:
Section 50 mandates that any person importing goods into the state must carry a duly filled declaration form (Form-38). The driver or person in charge of the vehicle must carry this form along with other relevant documents. If the form is found incomplete during inspection, it may lead to the detention of goods and imposition of a penalty.

3. Intention to Evade Tax Due to Unfilled Form-38:
The revisionist argued that the goods being transported were exempt from tax (fertilizer) and there was no intention to evade tax. The revisionist contended that the driver carried all relevant documents, and the omission in Form-38 was due to human error, not an attempt to evade tax. The department, however, argued that leaving columns blank could facilitate tax evasion by reusing the form.

4. Validity of the Penalty Imposed by the Assessing Authority:
The revisionist appealed against the penalty to the first appellate authority and then to the Trade Tax Tribunal, both of which upheld the penalty. The Tribunal's decision was based on the presumption that the unfilled Form-38 indicated an intention to evade tax. The revisionist cited a circular from the Commissioner, Commercial Tax, U.P., which directed officers to fill in any blank columns in Form-38 if other documents were in order and release the goods.

5. Tribunal’s Interpretation of the Law Regarding Tax Evasion:
The Tribunal’s decision was challenged on the grounds that it did not correctly apply the law regarding the intention to evade tax. The revisionist cited several judgments, including those from the Apex Court and the High Court, which emphasized that mere procedural defects do not constitute an attempt to evade tax. The judgments highlighted that the intention to evade tax must be established, and procedural lapses alone are insufficient for imposing penalties.

Conclusion:
The High Court found that the Tribunal had not correctly applied the law, as it failed to establish the intention to evade tax. The court noted that the goods were accompanied by all relevant documents and the unfilled columns in Form-38 were a result of human error. The court also referred to the circular directing officers to fill in blank columns if other documents were in order. Consequently, the High Court set aside the Tribunal’s order and allowed the revision, emphasizing that penalties should not be imposed solely on procedural grounds without proving the intention to evade tax.

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