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TMI Blog2019 (7) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the assessee that a new case has been set up, is not correct. Revision allowed. - Sales/Trade Tax Revision No. - 195 of 2019 - - - Dated:- 17-7-2019 - Saumitra Dayal Singh, J. For the Applicant : Aditya Pandey For the Opposite Party : C.S.C. ORDER SAUMITRA DAYAL SINGH, J. 1. The present revision has been filed by the assessee against the order of the Commercial Tax Tribunal, Varanasi dated 27.03.2019 passed in Second Appeal No. 28 of 2019 for A.Y. 2015-16 (U.P.) with respect to the proceedings under Section 48(5) of the U.P. Value Added Tax Act, 2008. The Tribunal has set aside the order of the first appeal authority dated 30.01.2018 and remitted the matter to the assessing officer to pass a fresh order in light of the directions issued by the Tribunal. 2. In brief, the assessee is engaged in trading in readymade garments etc. During a survey conducted at the business premises of the assessee on 02.01.2016, 18 bundles of readymade garments were found. Those were claimed to be referable to tax invoices of the dates 07.12.2015 to 27.12.2015, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective jurisdiction, the transaction was duly recorded in the account books and the transaction was duly supported by tax invoices issued by the selling dealer? 3. Whether on the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in remanding the matter especially when there is no possibility of levy of penalty in any view of the matter under Section 48(5) of the Value Added Tax Act? 7. Learned counsel for the assessee submits that the penalty order had been passed in great haste, ignoring the fact that the disputed transactions had been completed in the month of December 2015, whereas the proceedings for cancellation of the registration/TIN of the selling dealer M/s. A.N. Enterprises had been initiated in January 2019 and subsequently that registration was cancelled with effect from 01.01.2016. Thus, in the first place, on the date of the survey being conducted and the transactions being performed, the registration of the selling dealer was continuing. As such, no penalty could have been imposed on the ground of cancellation of the registration certificate of the selling dealer. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the penalty order had arisen not only on the reasoning that the registration of the selling dealer had been cancelled but it contained further reasoning that the said selling dealer was not a bona fide dealer and that it had not filed its returns for the relevant period. The assessing authority had doubted the very existence and bona fides of the transactions. Therefore, merely because the registration may have been in existence on the date of transaction, it would not be conclusive evidence of the transaction having been actually performed between the parties. 11. As to the objection raised by the assessee that a new case has been culled out by the Tribunal, learned Standing Counsel would submit that no new case has been made out by the Tribunal in the facts of the present case. In fact, the Tribunal has merely disapproved the conclusion drawn by the first appeal authority as being unreasoned. Since the finding of the first appeal authority was not backed by any cogent material or reasoning, the same has been set aside by the Tribunal. The fact that the Tribunal may have directed for an enquiry to be conducted in a particular manner upon the matter being rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough banking channel, there is no finding at all in that regard. Merely, by saying that the contention of the assessee was found true on verifying from the perusal of the tax invoice and purchase register, is not a complete finding in itself. The first appeal authority ought to have considered the matter in proper light of the allegations made against the assessee. A clear-cut finding was required to be recorded whether the seller M/s. A.N. Enterprises was a bona fide dealer in the context of the allegation of cancellation of his registration and whether the goods had actually been purchased from that dealer. 14. However, it is difficult to sustain the finding of the Tribunal in entirety, inasmuch as, though the Tribunal appears to be right in setting aside the order of the first appeal authority and remitting the matter to pass a fresh order and that exercise may not involve any fresh case or new case being considered, however, the directions that have been issued by the Tribunal to remit the matter to the assessing authority to pass the order in a particular manner only are not sustainable. Once the Tribunal has set aside the order of the first a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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