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TMI Blog2019 (4) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... isionist had in fact submitted a list of items, which was contained in the Form A. The registration was granted only with respect of two items and not for all the items as mentioned in the list - The revisionist was never given an opportunity nor any proceedings undertaken with respect of two items contained in the list in pursuance to order dated 29.06.1991 and from the conjoined reading of the entire facts as mentioned above, it cannot be said that there was a deliberate intention on the part of the revisionist to evade tax. The finding of the Tribunal is that the revisionist did not act in a bona fide manner seems to be perverse as there is no material to show that there was intention to evade tax by the revisionist. There is no lack of bona fide on the part of the revisionist, who has voluntarily submitted the list of goods but the same was not duly considered by the respondents. Malafide/malice is a necessary ingredient for imposition of penalty. It cannot be concluded that there was mala-fide/malice which can be attributed to the revisionist for imposition of penalty - revision allowed. - Trade Tax Revision No. - 86 of 2002, 85 of 2002, 84 of 2002, 83 of 2002, 82 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods, for which he was seeking registration, were:- (i) Diesel Generating Sets. (ii) Control Panel. 6. Learned counsel for the revisionist has further stated that the list of goods was annexed by means of separate list. The registration was granted to the revisionist on 15.02.1982 for two items namely, diesel generating sets and control panel. The revisionist, on the basis of the said registration, continued his business till he was given a notice of penalty for issuing Form C in respect of items, which were not covered by the registration under the Central Sales Tax. The revisionist has further drawn the attention of this Court to an order dated 29.05.1991 passed by Deputy Commissioner (Executive) Sales Tax, Lucknow, wherein, he has stated that after perusal of his application form and calling for report from the Trade Tax Officer, he has held that there was a list annexed to the application Form A, submitted by the revisionist for registration under the Central Sales Tax but it seems that registration has been granted only in respect of two items mentioned by him in the Form. It has been noticed in the said order that the registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take a decision after giving an opportunity to the revisionist. Admittedly the competent authority has not rejected the list contained with the application. 12. Learned counsel for the revisionist further submits that he was never afforded any opportunity and no proceedings were commenced subsequent to passing of the said order, with regard to the rejection of the list. 13. From the entire material as stated hereinabove, it is clear that the revisionist had in fact submitted a list of items, which was contained in the Form A. The registration was granted only with respect of two items and not for all the items as mentioned in the list. The revisionist was never given an opportunity nor any proceedings undertaken with respect of two items contained in the list in pursuance to order dated 29.06.1991 and from the conjoined reading of the entire facts as mentioned above, it cannot be said that there was a deliberate intention on the part of the revisionist to evade tax. The finding of the Tribunal is that the revisionist did not act in a bona fide manner seems to be perverse as there is no material to show that there was intention to evade t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity as well as the Tribunal have failed to consider the import of the expression false representation . As was held by the learned Single Judge in Project Technologist a false representation necessarily entails and presupposes the assessee knowingly making a representation claiming the benefit of the article being covered by his certificate of registration even though he knew that the same could by no stretch of imagination fall within the four corners of the said certificate. Once the first appellate authority came to a conclusion that it was possible to take the view that Form C was erroneously issued and that the same could be characterized as a mistake, the charge of a false representation could not have been sustained. In the absence of the authorities having formed the opinion that the assessee had falsely represented the import to be one covered by his certificate of registration, the imposition of penalty is clearly rendered unsustainable. This Court even otherwise finds no material circumstance which would justify a conclusion. 17. In the present case, it is the revisionist who claims to have submitted a list of goods alongwith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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