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TMI Blog2009 (1) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... without form XXXI with an intention to evade payment of tax. Thus, for the aforesaid reasons, the revision is allowed. The order dated January 12, 2009 passed by the Commercial Tax Tribunal, Lucknow in Second Appeal No. 3 of 2009 is set aside to the extent requiring the applicant to deposit five per cent of the amount awarded as penalty. - 26 of 2009 - - - Dated:- 27-1-2009 - NARAYANA B.K. , J. B.K. NARYANA J. Heard Sri Bharat Ji Agrawal, senior advocate, assisted by Sri S. M.K. Chaudhari and Sri Piyush Agrawal, learned counsel for the applicant and Sri Sanjeev Shankhdhar, learned counsel for the opposite-party. The instant commercial tax revision has been filed by the applicant for setting aside/modifying the judgment and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the assessing authority for the year 2003-04, a notice under section 15A(1)(o) of the Act was issued by the assessing authority for the alleged violation of section 28A alleging therein that the applicant had furnished only one form XXXI for every month for the goods received by the applicant by rail instead of submitting separate form XXXI for each consignment of goods received by the applicant. Upon receiving the show-cause notice, the applicant submitted its reply to the show-cause notice stating therein that the applicant has got its own railway siding and the entire goods received by rail wagon through rail are received at the railway siding of the applicant itself and the applicant had been regularly submitting one form XXXI f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery proceedings for realization of penalty till the decision of the first appeal by the Joint Commissioner (Appeals). Subsequently, the first appeal filed by the applicant against the penalty order dated March 28, 2008 was allowed by the Joint Commissioner (Appeals) by order dated July 26, 2008 by which the penalty order was set aside and the case was remanded back to the assessing authority. The Deputy Commissioner (Assessment), Commercial Taxes, Lucknow, however, after remand again passed the penalty order on October 20, 2008 against which an appeal being First Appeal No.1591 of 2008 was filed by the applicant before the Joint Commissioner (Appeals), Commercial Taxes, Lucknow. In the said appeal, the applicant filed an application fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were shown at the time of assessment by the applicant, as in view of such disclosure it cannot be said that there was any intention to evade tax merely on the ground that the import was without form XXXI. In support of his contention Sri Bharat Ji Agrawal has relied upon the following cases: 1.. Commissioner of Sales Tax, U.P., Lucknow v. Oriental Carbon Ltd. Ghaziabad reported in [1997] 10 NTN 105. 2.. Prag Ice and Oil Mills, Ramghat Road, Aligarh v. Commissioner of Sales Tax, U.P. Lucknow reported in [2004] 25 NTN 897. 3.. Wimco Limited, Bareilly v. Commissioner of Sales Tax, U.P. reported in [2003] 23 NTN 576. The ratio discernable from the cases cited on behalf of the applicant is that where a dealer importing goods disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vade payment of tax. In view of the aforesaid discussion and the case law cited on behalf of the applicant, I am of the view that the applicant has made out a very strong prima facie case for being granted complete protection against recovery of the penalty amount during the pendency of the first appeal before the Joint Commissioner (Appeals) and the part of the impugned order of the Commercial Tax Tribunal requiring the applicant to deposit five per cent of the amount imposed as penalty by the assessing authority as a condition for stay of recovery of penalty amount during the pendency of the first appeal before the Joint Commissioner (Appeals) is totally unsustainable and liable to be set aside. After the arguments were concluded Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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