2021 (11) TMI 441 - HC - VAT and Sales Tax

Penalty proceedings under section 54(1)(14) of the U.P. Value Added Tax Act - unfilled (blank) column of Form 38 - contravention of the provisions of Section 50 of the Act, 2008 - HELD THAT - Admittedly, the goods were coming from outside the State of U.P. along with all requisite documents accompanying the vehicle in question, but only column no. 6 was left blank. On the said basis, the seizure and the penalty proceedings have been initiated against the opposite party on the inference of reuse of Form 38, but there was no allegation of any mis-match in the description of the goods or weight or otherwise. Therefore, there was no intention to evade payment of tax. Reliance placed in the case of THE COMMISSIONER COMMERCIAL TAX U.P. LUCKNOW VERSUS S/S DEEPAK TRADING CO. GHAZIABAD 2020 (1) TMI 751 - ALLAHABAD HIGH COURT , where it was held that 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. Revision dismissed.

Summary

Issues Involved:
1. Legality of the penalty under section 54(1)(14) of the U.P. Value Added Tax Act.
2. Justification for quashing the penalty proceedings by the Commercial Tax Tribunal.

Issue-wise Detailed Analysis:

1. Legality of the Penalty under Section 54(1)(14) of the U.P. Value Added Tax Act:

The primary issue revolves around whether the imposition of a penalty under section 54(1)(14) of the U.P. Value Added Tax Act was legally justified. The goods were imported from Kolkata to Ghaziabad with all requisite documents, except for column no. 6 in Form 38, which was left blank. The penalty proceedings were initiated on the basis of this omission, leading to the inference of potential reuse of Form 38 to evade tax. The Tribunal quashed the penalty, affirming that the goods were accompanied by all necessary documents, and there was no intention to evade tax. The court reiterated that the mere non-filling of column no. 6 does not automatically indicate an intention to evade tax, especially when all other documents were in order and there was no mismatch in the goods' description or weight.

2. Justification for Quashing the Penalty Proceedings by the Commercial Tax Tribunal:

The Tribunal's decision to quash the penalty was based on the fact that both the seller and purchaser were registered dealers, maintaining regular account books, and there was no intention to evade tax. The court referred to previous judgments, including the case of CCT Vs. S/S Deepak Trading Co. Ghaziabad, which emphasized that penalty under section 54(1)(14) requires a clear intention to evade tax. The court noted that the non-filling of column no. 6 could be attributed to human error and that the goods were accompanied by all relevant documents, including the bill, challan, and bilty, which could verify the goods being transported. The court also referenced a circular dated 03.02.2009, which instructed officers to fill in any blank columns in Form 38 at check posts and release the goods if all other documents were in order.

The court concluded that the penalty could not be imposed solely based on the blank column without establishing the intention to evade tax. The Tribunal's findings were upheld, and the revisions were dismissed, affirming that no substantial question of law arose from the case.

Conclusion:

The court dismissed both revisions, ruling that the Tribunal was justified in quashing the penalty proceedings. The non-filling of column no. 6 in Form 38, without evidence of intent to evade tax, does not warrant the imposition of a penalty under section 54(1)(14) of the U.P. Value Added Tax Act.