High Court
Case Details
Court No. - 1 Case :- SALES/TRADE TAX REVISION No. - 108 of 2015 Revisionist :- Power Grid Corporation Of India Limited Opposite Party :- Commissioner Commercial Tax Lko. Counsel for Revisionist :- Murari Mohan Rai Counsel for Opposite Party :- C.S.C. Hon'ble Piyush Agrawal,J.
Legal Reasoning
1. Heard Sri Murari Mohan Rai, counsel for the revisionist and Standing Counsel for the respondent. 2. The present revision has been filed against the order dated 27.12.2014 passed by Commercial Tax Tribunal, Allahabad Bench, Allahabad in Second Appeal No. 193 of 2014 for Assessment Year 2009-10 arising out of penalty proceeding initiated under Section 54 (1) (14) of the U.P. Value Tax Act, in which following question of law have been framed:- (1) Whether on the facts and in the circumstances of the case, the levy of penalty under section 54 (1) (14) of the U.P. Value Tax Act was justified and in accordance with law? (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding the levy of penalty on mere omission to fill in column no. 6 in the second copy of form 38 ignoring the findings of the first appellate authority? (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding the levy of maximum amount of penalty without assigning any reason thereof?
Decision
3. The counsel for the revisionist submits that the revisionist is a Government undertaking owned and controlled by the Ministry of Power. The revisionist is engaged in laying the power transmit line and maintenance, supervision thereof. In view of the above certain items were brought from outside the State which were to be used for laying the power line. The applicant is not selling these items, the goods were intercepted and seized on the ground that Column No. 6 of From 38 was left blanked. Thereafter, the proceeding were initiated and goods were released on furnishing the security and thereafter the penalty proceeding have been initiated and penalty of Rs. 10,32,400/- has been imposed. 4. The revisionist went in appeal before the Tribunal. The Tribunal being last court of fact and law, without reversing the finding of the First Appellate Authority that the revisionist is not selling the goods in question nor there is any intention to evade payment of tax, has restored the penalty order which is bad in law. He prays for allowing the revision. 5. Per contra, learned Standing Counsel supports the order of the Tribunal. 6. After hearing the parties the Court has perused the record. 7. Admittedly, the revisionist is Government undertaking owned and controlled by the Ministry of Power and is one of the company which is declared as Navratan of India. The revisionist which is Government undertaking is laying the power line and in the said process, certain items were imported which were to be used for laying power line and maintaining the same. The goods were seized and thereafter penalty proceedings were initiated on the ground that there was intention to evade payment of tax but First Appellate Court after due consideration has decided the issue in favour of the revisionist, which reads as under:- रटमट पलसनज) कक ० टटटनसममशन लटइन कक मबछटनन तथट उसकन रखरखटव कट कटरर करतत हह। अपतलकतटर कक ० मम पटमवधटन हह मक where the Dealer or any other मबकक नहह करतत हह। धटरट 54(1)(14) person, as the case may be(1) imports or attempts to import or abets the import of any goods, in contravention of the provisions under section 50 or section 51 with view to avoid payment of tax on SALE of (1) such goods. कहनन कट तटतपरर रह ललए आरटमतत मटल कक मबकक मकरट जटनट अमनवटरर हह मक इस धटरट मम अथरदणड कन आरकपण कन मबनदद हह। अपतलकतटर कक ० आरटमतत मटल कक उसत दशट मन अथवट मनमटरण मम परटग करकन मबकक नहत करतट हह। मटल कक मबकक नहह कक जटतत हह ऐसत दशट मम कर कक दनरतट नहह बनतत हह। जब कर कक दनरतट हत नहह हह तब करटपवचकन कक मकशट भत नहह हक सकतत। मट उचच नरटरटलर नन मवमभन नरटमरक मनणररक ( मम सपष रप सन मनणरत मकरट हह मक अथरदणड आरटपण कन ललए करटपवकचन कक मकशट हकनट अमनवटरर हह। In the case of CTT vs Bharat Heavy Electricals Ltd STI 1999 536, Honorable High Court held that Penalty under section 15-A(1) (0) can be imposed if there is mens rea i.e. Intention to evade payment of tax. The penalty cannot be imposed for mistake in the goods not accompanying in Form XXXI. In the instant case, the Tribunal has held that the dealer is a Government of India undertaking and could not have escaped assessment on turnover of imports and there could not be any intention of evading payment of tax of the dealer was liable to pay tax, Still the department has filled the present revision, the revision is devoid of merit and hereby dismissed. अपतलकतटर नन मट सदसर अलधकरण वदटर पटररत मवमभन अपतलतर मनणररक कट उलनख मकरट गरट हह। सवरशत जटनसन एणड जटनसन लल० कन वटद मम मट० अलधकरण नन मनणरत मकरट हह मक It is correct that original declaration Form does not bear Bill No and date but in the second copy of it bears the same Bill no and date- NO intention to evade or avoid tax- bill no and date were left unfilled on the declaration form due to clerical mistake whereas second copy of it is found duly filled on- उपर मववनमचत तथरय सन रह सपष हह मक इनवटरस सकखरट व मतलथ कट ममल पमत मम अककन न मकरट जटनट एक मटनवतर भमल थत तथट कक गरत इस भमल मम अपतलकतटर कक करटपवचकन कक मकशट नहह थत। आरकमपत अथरदणड मवलधक रप सन उमचत नहह हह। इस पकटर दटरर अपतल मम बल हह जक मक सवतकटर मकरन जटनन रकगर हह। 8. On appeal by the Revenue the Tribunal has restored penalty order. The Tribunal has observed that in Form 38 invoice number and date was not mentioned but has failed to record any finding that there was an intention to evade payment of tax or the goods in question have been sold by the revisionist. Admittedly the revisionist is Government of India undertaking and could not escaped/avoid assessment of turnover of imported goods, therefore, there cannot be any intention to evade payment of tax. The Tribunal should have examined the said fact before restoring the penalty order. The Tribunal has further erred in law in restoring the penalty order without reversing the finding of fact recorded by the First Appellate Authority. 9. In view of the above, the order of the Tribunal could not sustain in the eyes of law and is hereby quashed. The revision is allowed. The matter is remanded to the Tribunal for deciding the issue afresh. In view of the observation made herein above. 10. It is expected that since the matter is very old, the Tribunal may take all possible effort to decide the same within a period of three months from the date of receipt of a copy of this order. 11. The revisionist undertakes to serve the copy of this order within a fortnight. In the event of failure on the part of the revisionist, benefit of this order shall not be accorded to the revisionist. 12. The question of law is answered accordingly. Order Date :- 27.4.2022 Vikram Digitally signed by VIKRAM SINGH Date: 2022.05.05 11:03:11 IST Reason: Location: High Court of Judicature at Allahabad