9911796707
TMI Blog2004 (8) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... rise to the present writ petition are as follows: The petitioner was a proprietorship concern and was carrying on the business of sale and purchase of papers, etc. It was a registered dealer under the provisions of the U.P. Sales Tax Act (hereinafter referred to as the Act ), which was valid upto the year 1980-81. According to the petitioner, it surrendered the registration certificate on 30th April, 1981 as it had closed the business after 31st March, 1981. The Assessing Authority initiated assessment proceedings for the Assessment Year 1983-84 and vide order dated 30th March, 1988 fixed the taxable turnover of the petitioner at ₹ 1,00,000 creating a tax liability of ₹ 6,000. The assessment order was set aside under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be taken, He further submitted that, according to the own showing of the respondent No. 2, the information was received by him on 17th September, 1990 and for a period of about three years, no action was taken. It was only on 20th March, 1993 that notice was issued and the penalty order has been passed on 31st March, 1993. According to him, the penalty proceedings even if no period of limitation has been prescribed under the Act, ought to have been taken within a reasonable period and in the present case, the same has been done after about nine years, the penalty should be quashed on this ground alone. In support of his aforesaid submission, he relied upon a decision of this Court in the case of Mohd. Atiq v. income Tax Officer, District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that it is not in dispute that in the regular assessment order for the Assessment Year 1983-84, the petitioner had been assessed to tax on a turnover of ₹ 1,00,000 and a sum of ₹ 6,000 was imposed as tax, which order had been upheld in the appeal. In respect of alleged information received by the respondent No. 2 that the petitioner had effected sales outside his books of account amounting to ₹ 3,74,490, no proceeding for re-assessment at provided under Section 21 of the Act had been initiated. The information regarding the alleged sales had been received by the respondent No. 2 on 17th September, 1990. Even no application was made before the Assistant Commissioner (Judicial) before whom the appeal was pending under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held that there was unreasonable delay in commencing the proceedings and the proceedings were quashed. Similar view was taken by this Court in the case of Bisheshwar Lal (supra). Here in the present case, we find that the penalty proceedings were taken after 9 years much after the period of retaining the books of account had come to an end. Thus, the proceedings having been taken after a long and unreasonable dealy is liable to be quashed. 8. This Court in the case of M/s. Bharat Oil Company v. Commissioner of Trade Tax (Trade Tax Revision No. 858 of 1994, decided on 9th July, 2004) has held that the penalty for concealment of turnover under Section 15-A (1) (c) of the Act, would be the difference between the tax as returned and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per shall be kept in abeyance show existence of mens rea. even if required. Similarly where, despite opportunity having been granted under Section 78 (5) if the requisite documents referred to in sub-clause (2) (a) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the Counsel for the respondents that breach referred to in Section 78 (5) can be regarded as technical or venial. Once the ingredients of Section 78 (5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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