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TMI Blog2007 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. With regard to turnover of the sales the burden would lie on the dealer. Similar view has been taken in the judgments referred to above, relied upon by the learned counsel for the dealer. In view of the above discussion, the imposition of penalty cannot be justified and has to be set aside. Whereas the liability of tax has to be maintained. - - - - - Dated:- 20-12-2007 - VIKRAM NATH , J. VIKRAM NATH J. Both these revisions arise out of the proceedings for the assessment year 2000-01. Revision No. 2557 of 2005 relates to the assessment proceedings under section 7(3) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, the Act ) whereas Revision No. 2558 of 2005 relates to penalty proceedings under section 15A(1)(o) of the Act. The mobile squad of the Trade Tax Department intercepted the truck carrying certain goods on April 30, 2000. The truck was stationed at the police station and the goods were given to the custody of the station house officer on May 31, 2000. Notice under section 13A of the Act for seizure of the goods demanding explanation from the dealer was issued by the Trade Tax Department on June 1, 2000. Statement of the driver was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order the dealer preferred appeals which were dismissed by the Deputy Commissioner (Appeals) vide order dated September 28, 2001 and February 7, 2002 respectively. The dealer preferred two second appeals which were heard and decided together vide impugned order dated September 15, 2005 against the dealer. Aggrieved by the same the present two revisions have been filed. I have heard Sri R.D. Gupta, learned counsel for the dealer-applicant and Sri K.M. Sahai, learned Standing Counsel for the department and perused the record filed along with the revision. In T.T.R. No. 2557 of 2005 the following question of law has been sought to be raised Whether the Trade Tax Tribunal was legally justified to partly allow the appeal and fix the turnover without considering the material on record and argument of the counsel and explanation of the revisionist and without showing any reason or basis? In T.T.R. No. 2558 of 2005 the following questions of law have been sought to be raised (i) Whether the Trade Tax Tribunal was legally justified to partly allow the appeal and fix the penalty amount without recording any basis or finding and without considering material on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that after the release of the goods, the dealer had sold the same without making any entries in the account books for the reason that they were not found in the survey dated November 9, 2000 and therefore, the assessment involving the turnover of such seized goods were justified. The dealer has been subjected to seizure and penalty proceedings earlier on several occasions for importing supari without the relevant papers. It is further submitted that goods were being imported as from the receipt of the bags of the supari it was clear that they belong to Kerala and Gwalior and the dealer had failed to produce any material that the said goods were imported by the dealer after payment of necessary tax. Thus, according to him, it is not a case where there was no evidence to show that goods were not being imported. Sri Sahai has further submitted that the circulars issued by the Commissioner could not prohibit the assessing officer from continuing with the assessment proceedings inasmuch as the statute provides limitation for making assessment and in case assessment is not made in time it may become time barred. In addition it was submitted that the circulars relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods and the transportation was only within the State of U.P. of tax-paid goods. From perusal of the judgment of the Tribunal it is apparent that there is discussion with regard to the said documents filed by the dealer. The Tribunal has rejected the said documents and has drawn an inference against the dealer. Further from a perusal of the judgment of the Tribunal it is apparent that the Tribunal disbelieved the case set up by the dealer that he had purchased the said tax-paid goods from Kanpur as there was no evidence produced by the dealer to show the purchase of the disputed 75 bags of Supari. Further, the Tribunal had held that as the goods which were seized and subsequently released in favour of the dealer under the order of the Chief Judicial Magistrate, in the supurdagi of the dealer were not available in the subsequent inspection/survey at its premises which clearly led to the conclusion that such goods had been sold by the dealer. The finding recorded by the Tribunal was based upon the material available on record. I do not find any infirmity in the said finding of fact recorded by the Tribunal and therefore, the assessment made by the Tribunal cannot be faulted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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