9911796707
TMI Blog2009 (11) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... the imposition of penalty is justified and the Tribunal has committed no error either on facts or in law in upholding the same. Revision dismissed. - 702 of 2006 - - - Dated:- 4-11-2009 - ABHINAVA UPADHYA , J. ABHINAVA UPADHYA J. The present revision under section 11 of the Trade Tax Act, 1948 (hereinafter referred to as, the Act ) is filed against the order of the Tribunal dated February 13, 2006, passed in Second Appeal No. 53 of 2005 filed by the trader against the levy of penalty under section 13A(4) of the Act., relating to the assessment year 2003-04. The facts in brief are that the applicant is engaged in the business of sale and purchase of foodgrains on his own account as well as on commission. The said business is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the quantum of penalty under section 13A(4) of the Act was justified? Heard learned counsel for the applicant, Shri Kunwar Saxena, and Shri B.K. Pandey, learned standing counsel for the Department. This court vide its order dated August 24, 2009 directed the applicant to file a copy of the survey report dated June 28, 2003 (incorrectly mentioned in the order as June 26, 2006), and copy of statement, if any that may have been recorded at the time of survey. Today, a supplementary affidavit along with a copy of survey report of the Assistant Commissioner, Special Investigating Branch (SIB), Second Unit, Trade Tax, Bareilly dated June 28, 2003 is being filed, and taken on record. The survey report as filed, states that a sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandi assistant with whom the said record was available was not present. It is recorded in the survey report that since the goods were found stored in godown which is not the declared business premises of the applicant, and no books of account having been shown, the 926 bags kept in the godown and 130 bags loaded on the truck were put under the custody of the mandi inspector with the direction to the proprietor of the firm to appear before the Assistant Commissioner, Special Investigating Branch (SIB) on July 3, 2003 for verification of accounts. During the penalty proceedings, the assessing authority while considering the reply of the applicant has recorded a finding that upon inspection of satti bahi it was found that for the mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , makes it obvious that the dealer had no intention of declaring the said goods for the sole purpose of evading tax, and if, the survey was not conducted the dealer would have succeeded in transporting the unaccounted goods. The first appellate court as well as the Tribunal affirmed the view of the assessing authority and upheld the order of penalty. Shri Kunwar Saxena assailing the aforesaid findings has conceded that section 12 of the Act requires maintenance of books of account and the same must be produced on demand. But he submits that there can be various reasons for the dealer not to be present at the time of survey, or there can be various bona fide reasons for not showing the books of account on demand, and therefore, this fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detaining the vehicle should have immediately gone to business premises and should have checked the books of account or it could have summoned them, but merely, on this basis penalty could not have been levied. Shri Saxena has then relied upon another decision in the case of Commissioner, Trade Tax v. Shakti Cement Agency, Delajakapur, Gorakhpur reported in [2008] 17 VST 266 (All); [2008] 36 NTN 146, in which also certain goods were in transit and on inspection it was found that the goods were booked by one dealer in Gorakhpur and was to be delivered to another dealer in Maharajganj, but on inspection a letter was recovered from the driver addressed to dealer of Maharajganj, Siwan, Bihar regarding delivery and payment of such goods, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every survey such a plea can be taken and that would render the survey itself meaningless and ineffective. It is also true that nonproduction of books of account cannot be the sole reason for rejection of accounts or for imposition of penalty. But non-production of books surely becomes relevant in terms of attending circumstances, at the time of survey. The honourable Supreme Court in the case of Commissioner, Sales Tax v. Mohan Brickfield reported in [2006] 148 STC 638; [2007] 1 UPTC 1, has held that the books of account are to be kept at the place of business and if not kept or shown on demand, the exercise of inspection itself becomes redundant and meaningless. It is notable that in the present case, the authorities were not solely g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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