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TMI Blog2018 (1) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... rchasing dealer cannot be construed as a deliberate act so as to bring it within the clutches of section 54(1)(5) - penalty not sustained - revision allowed. - Sales/Trade Tax Revision No. - 193 of 2012 - - - Dated:- 5-5-2017 - Ashwani Kumar Mishra, J. For The Applicant : Piyush Agrawal,Bharat Ji Agrawal For The Opposite Party : C.S.C. ORDER Hon'ble Ashwani Kumar Mishra, J. 1. Revisionist is a registered dealer under the Act. For the purposes of raising construction of a colony, it purchases various construction materials like cement etc. from a registered dealer. Such purchases were made by way of a sale invoice and not against tax invoice. The authorities and the Tribunal have penalized the revisionist for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cases. (1) The assessing authority, if he is satisfied that any dealer or other person, as the case may, has committed the wrong described in column 2 of the table below, it may, after such inquiry, if any, as it may deem necessary and after giving dealer or person reasonable opportunity of being heard, direct that such dealer or person shall, in addition to the tax, if any, payable by him, pay by way of penalty, a sum as provided in column 3 against the same serial no. of the said table: Sl. No. Wrong Amount of Penalty 5 Where the dealer has,- ( i) Failed to issue or has deliberately n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(5) in this context assumes significance. The provision begins with the expression deliberately . The expression deliberately means an act done intentionally and purposely. The object behind the provision is to penalize the purchasing dealer if it deliberately omits to comply with the requirement of section 22(7) of the Act. In the very scheme of the Act, it would be implicit that this deliberate act of non furnishing of details would be with an intent to gain some undue advantage. In case the purchasing dealer has not taken any benefit out of such lapse, the imposition of penalty would not be as a matter of routine. This view stands verified from the observations of the Apex Court in M/s Hindustan Steel Ltd. vs. State of Orrisa, (1969) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, before it proceeds to levy penalty, must examine the facts and circumstances of a given case. If it is found that the lapse on part of the dealer is not with an intent to secure undue gain, then ordinarily penalty ought not to be imposed. 7. In the facts and circumstances of the present case, the Tribunal has clearly noticed the fact that there was no undue benefit gained by the assessee on account of issuance of sale invoice instead of tax invoice. In such circumstances, the act of purchasing dealer cannot be construed as a deliberate act so as to bring it within the clutches of section 54(1)(5). The imposition of penalty, therefore, is not liable to be sustained. The question of law posed for consideration is answered accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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