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TMI Blog2019 (1) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... exparte against the assessee. For the purpose of imposing penalty, the burden clearly lay on the revenue authority to issue a proper notice bringing out the charge of violation alleged against the assessee. Once the First Appellate Authority found that the allegation did not constitute offence of violation, the matter had to rest there - The discretion is always with the Assessing Authority while issuing the notice to examine the matter and frame such charge against the assessee as it felt proper. Once the charge had been framed, there is no room for seeking improvement that too at the stage of first appeal. Once the penalty notice has been found to be wanting in ingredients of offence, that is absence of charge of intention to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even in the penalty notice ? (ii) Whether the Tribunal was justified in affirming the order of remand without adjudicating the specific issue raised by the applicant with respect to the validity of the remand order passed by the first Appellate Authority when the finding on merits has been recorded in favour of the applicant that the ingredients of Section 54(1)(14)of the Act are missing in the penalty order ? 4. The present revision has been filed by the assessee against the order of the Commercial Tax Tribunal, Saharanpur dated 25.09.2018 passed in Second Appeal No. 249 of 2017 (A.Y. 2014-15) arising from proceedings under Section 54(1)(14) of the U.P. VAT Act, 2008 (hereinafter referred to as the Act). 5. The facts in brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded a specific finding that the penalty notice had been issued to the assessee solely on account of the fact that it had not deposited the security to obtain release of the goods. This notice was adversely commented upon by the First Appellate Authority stating that such a course was not proper. Once the First Appellate Authority had reached that conclusion against the notice to impose penalty, learned counsel for the assessee would submit there survived no occasion to remand the matter especially to afford the revenue a second opportunity to issue a fresh penalty notice to cover up the lapse noted by the First Appellate Authority. Once the penalty notice had been found to be defective to the extent that no ground to impose penalty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the assessee, this Court may not answer question no.1, and it may remit the matter to the Tribunal for that purpose. 12. Having heard learned counsel for the parties, it appears, inasmuch as the Tribunal has not adjudicated question nos. 2 and 4 raised in the memo of appeal, therefore, the question no. (1) cannot be answered in favour of the assessee and the matter is required to be remitted to the Tribunal for that purpose. However, that is not required, because, coming to question no.2 as has been framed, it could not be denied by learned Standing Counsel that the First Appellate Authority had recorded a finding that the penalty notice insofar as it had been issued solely on account of security money not been deposited by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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