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TMI Blog2019 (11) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... a person who intends to bring the import, otherwise to receive into the State from any place within the State any goods or other than the goods exempted in Clause (A) of Section 4 shall obtain a prescribed Form of declaration for payment of the prescribed fee from the Assessing Authority, having jurisdiction of the area wherein the principal place of business is situated or in case any such place where he ordinarily resides. Only because certain columns were left blank, could it be concluded that there was intention on the part of the revisionist to evade tax or that goods were being carried in contravention to the statutory provisions contained in Section 28 A of the Trade Tax Act? - HELD THAT:- From a perusal of the statutory provision Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to evade the payment of tax. The order of the Commercial Tax Tribunal, is liable to be set-aside and is set-aside - Revision allowed. - Alok Mathur, J. For the Revisionist : Pradeep Agarwal ORDER ALOK MATHUR, J. Heard Mr. Pradeep Agarwal, learned counsel for the revisionist as well as Mr. Rohit Nandan Shukla, learned counsel for the revenue. By means of the present revision the revisionist has challenged the order of the Trade Tax Tribunal dated 24.01.2003, whereby the order of the First Appellate Authority dated 05.08.1999 has been set-aside and the penalty order dated 15.03.1999 has been restored. It has been submitted by the revisionist that he is a registered dealer under the U.P. Trade Tax Act, 1946 and is engaged in a manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Lucknow. The appellate authority allowed the appeal preferred by the revisionist, taking into consideration the Circular No.- Check post/98-99/25-1-50/1840 Trade Tax dated 30.03.1999, wherein it has been provided that at the Check Post, where it is found that the details of the goods are not mentioned in the Form 31, the goods shall not be seized only because of non-declaration of the details of the goods, but the officials would fill up the Form 31 in accordance with the goods found to be loaded in the vehicle and released the goods forthwith. The first appellate authority also considering the provisions of Section 28 A came to the conclusion that petitioner had duly obtained Form 31 and as the goods were exempted from Trade Tax, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is also clear from the fact on record that the Truck driver was carrying Billity/GR Form where it was clearly mentioned that 93 bags of PET/ Preform/Plastic bags were being carried on the Truck and therefore entire details of the goods were available with the Truck driver and the same were produced before the authority concerned at the Check post. The penalty could have been imposed upon the revisionist in accordance with Section 15A (O) which provides that the same can be levied in case the goods are being transported in contravention to the provision of Section 28A. The perusal of Section 28 A of the U.P. Trade Tax Act would indicate that it is mandatory for a person who intends to bring the import, otherwise to receive into the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no intention to evade tax and therefore the penalty order which has been issued is clearly arbitrary and liable to be setaside. The Tribunal while considering the entire aspect of the case has dismissed the findings recorded by the first appellate authority holding them to be factual and legally impermissible. It is true that the Trade Tax Tribunal, is the final fact finding body as envisaged under the Trade Tax Act, 1948 and while exercising power in Second Appeal it could set-aside the findings recorded by the First Appellate Authority, but while exercising the said jurisdiction they have to record their satisfaction and the same can be done only if it is perverse or contrary to the materials available on record. The Trade Tax Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 1997 NTN (Vol.10)-105 and a Division Bench decision of this Court in the case of M/s Rama Pulses Vs. State of U.P. Others as reported in 2009 NTN (Vol.41)-189 wherein this Court has held that the intention to evade payment of tax is Since qua non for levy of penalty and has held that the law laid down in Jain Shudh Vanaspati Ltd., is still good law to the extent that before the imposition of penalty the authority must give to the assessee a notice under the provisions of the Act to record a finding that there was an intention to evade the payment of tax. Considering all the aspects of the matter, I am of the considered opinion that the order of the Commercial Tax Tribunal, is liable to be set-aside and is set-aside. The revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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