The Commissioner Commercial Tax v. Party
Case Details
1. Heard Shri Vishwajit, learned counsel for the revisionist and Shri B.K. Pandey, learned ACSC for the opposite party.
2. The instant revision has been filed against the impugned order dated
22.10.2012 passed by the Commercial Tax Tribunal, Agra for the Assessment Year 2008-09 under section 54(1(14) of the UP VAT Act.
3. The aforesaid revision was admitted by this Court vide order dated
08.01.2013.
4. Learned counsel for the revisionist submits that revisionist is a partnership firm and is engaged in the business of taking photographs, including developing, printing and enlargement of photo films and is duly registered under the provisions of U.P. VAT Act. In the normal course of business, the revisionist purchased one Canon Large Format Printer and two Canon Printers stand vide invoice no. 16 dated 27.11.2008. The said goods were coming from Delhi to Varanasi. He further submits that the goods in question were meant to be used in its lab at Varanasi and not for sale. The goods were accompanying with Form - 38 as prescribed under the VAT Act and GR's. He further submits that the goods in question were partly financed by the ICICI Bank. While the goods were in transit, the same were intercepted at Ghaziabad by the Mobile Squad on
28.11.2008 and seized on the ground the columns of accompanying Form - 38 were not filled by the seller and thereafter, the penalty order dated 28.06.2009 was passed imposing penalty @ 40%, i.e., 2 STRE No. 1247 of 2012 Rs. 1,52,000/-. Aggrieved by the said order, the revisionist preferred first appeal, which has been dismissed vide order dated 31.05.2010. Still feeling aggrieved, the revisionist preferred a second appeal before the Commercial Tax Tribunal, which has also been dismissed vide impugned order dated 22.10.2012.
5. Learned counsel for the revisionist further submits that the goods in question were not meant for sale, but were for personal use for getting the photograph printed. The revisionist is not dealing in the business of sale of printers, but only photographs, including developing, printing and enlargement of photo films. He further submits that there was no intention to evade payment of tax. He further submits that even if Form - 38 was blank, no adverse inference could have been drawn against the revisionist. He further submits that if the form was blank, the authority was duty-bound to fill up the blank form in accordance with the documents accompanying the goods. He further submits that no intention to evade payment of tax can be attributed if the Form - 38 was left blank. In support of his submissions, he has placed reliance on the judgements of this Court in M/s Maharani Hardware Vs. CCT [Sales/Trade Tax Revision No. 206/2015, decided on 28.03.2022], CCT Vs. S/s Hindisawar Bidi Works [Sales/Trade Tax Revision No. 160/2013, decided on 09.01.2020], CCT Vs. M/s Philips Electronics India Limited [Sales/Trade Tax Revision No. 326/2013, decided on 17.02.2022], CCT Vs. S/s P.B.L. Tag Factor (India) Private Limited [Sales/Trade Tax Revision No. 1232/2012, decided 08.09.2017] and M/s Two Brothers Filaments Limited Vs. CTT [Sales/Trade Tax Revision No. 166/2017, decided on 25.03.2022].
6. He further submits that the assessment order has been passed on
20.02.2012 and no adverse inference has been drawn against the revisionist, even though penalty was levied. He further submits that once the assessment order has been passed and no adverse view has been drawn, the penalty order cannot be sustained.
7. Per contra, learned ACSC supports the impugned orders and submits that the revisionist has violated the provisions of the Act as Form - 38 was left blank and if the goods were not seized, the same could have been 3 STRE No. 1247 of 2012 used for multiple times with intent to evade payment of tax.
8. After hearing learned counsel for the parties, the Court has perused the records.
9. It is not in dispute that the revisionist is engaged in the business of taking photographs, including developing, printing and enlargement of photo films. For the said purpose, the printers were purchased from Delhi, which were coming to its lab at Varanasi. The goods were not meant for sale and no adverse inference has been brought on record to show that the goods were meant for sale or the revisionist has intention to sell the same. Even if the blank form was found at the time of interception, the authority ought to have got the same filled up in accordance with law other documents, instead of seizing the goods. Merely because Form - 38 was blank, the same cannot be attributed that there was any intention on the part of the revisionist to evade payment of tax, which was not meant for sale.
10. This Court in M/s Maharani Hardware (supra), S/s Hindisawar Bidi Works (supra), M/s Philips Electronics India Limited (supra), S/s P.B.L. Tag Factor (India) Private Limited (supra) and M/s Two Brothers Filaments Limited (supra) has taken the view that even the blank forms are there, no attribution can be attached for intention to evade payment of tax. Furthermore, in the present case, the assessment order has been passed, which has been brought on record along with the supplementary affidavit, showing no adverse inference in the assessment order has been passed in pursuance of the penalty order. Further, the assessment order shows that the revisionist was never dealing with the sale or purchase of printers. On the contrary, the revisionist was dealing with development of photographs, etc.
11. In view of the aforesaid facts & circumstances of the case as well as the law laid down by this Court, the impugned order dated 22.10.2012 passed by the Commercial Tax Tribunal, Agra for the Assessment Year 2008-09 under section 54(1(14) of the UP VAT Act cannot be sustained in the eyes of law. The same is hereby set aside.
17. The revision is, accordingly, allowed. 4 STRE No. 1247 of 2012
18. The questions of law are accordingly decided in favour of the Revisionist. October 7, 2025 Amit Mishra (Piyush Agrawal,J.) AMIT KUMAR MISHRA High Court of Judicature at Allahabad
1. Heard Shri Vishwajit, learned counsel for the revisionist and Shri B.K. Pandey, learned ACSC for the opposite party.
2. The instant revision has been filed against the impugned order dated
22.10.2012 passed by the Commercial Tax Tribunal, Agra for the Assessment Year 2008-09 under section 54(1(14) of the UP VAT Act.
3. The aforesaid revision was admitted by this Court vide order dated
08.01.2013.
4. Learned counsel for the revisionist submits that revisionist is a partnership firm and is engaged in the business of taking photographs, including developing, printing and enlargement of photo films and is duly registered under the provisions of U.P. VAT Act. In the normal course of business, the revisionist purchased one Canon Large Format Printer and two Canon Printers stand vide invoice no. 16 dated 27.11.2008. The said goods were coming from Delhi to Varanasi. He further submits that the goods in question were meant to be used in its lab at Varanasi and not for sale. The goods were accompanying with Form - 38 as prescribed under the VAT Act and GR's. He further submits that the goods in question were partly financed by the ICICI Bank. While the goods were in transit, the same were intercepted at Ghaziabad by the Mobile Squad on
28.11.2008 and seized on the ground the columns of accompanying Form - 38 were not filled by the seller and thereafter, the penalty order dated 28.06.2009 was passed imposing penalty @ 40%, i.e., 2 STRE No. 1247 of 2012 Rs. 1,52,000/-. Aggrieved by the said order, the revisionist preferred first appeal, which has been dismissed vide order dated 31.05.2010. Still feeling aggrieved, the revisionist preferred a second appeal before the Commercial Tax Tribunal, which has also been dismissed vide impugned order dated 22.10.2012.
5. Learned counsel for the revisionist further submits that the goods in question were not meant for sale, but were for personal use for getting the photograph printed. The revisionist is not dealing in the business of sale of printers, but only photographs, including developing, printing and enlargement of photo films. He further submits that there was no intention to evade payment of tax. He further submits that even if Form - 38 was blank, no adverse inference could have been drawn against the revisionist. He further submits that if the form was blank, the authority was duty-bound to fill up the blank form in accordance with the documents accompanying the goods. He further submits that no intention to evade payment of tax can be attributed if the Form - 38 was left blank. In support of his submissions, he has placed reliance on the judgements of this Court in M/s Maharani Hardware Vs. CCT [Sales/Trade Tax Revision No. 206/2015, decided on 28.03.2022], CCT Vs. S/s Hindisawar Bidi Works [Sales/Trade Tax Revision No. 160/2013, decided on 09.01.2020], CCT Vs. M/s Philips Electronics India Limited [Sales/Trade Tax Revision No. 326/2013, decided on 17.02.2022], CCT Vs. S/s P.B.L. Tag Factor (India) Private Limited [Sales/Trade Tax Revision No. 1232/2012, decided 08.09.2017] and M/s Two Brothers Filaments Limited Vs. CTT [Sales/Trade Tax Revision No. 166/2017, decided on 25.03.2022].
6. He further submits that the assessment order has been passed on
20.02.2012 and no adverse inference has been drawn against the revisionist, even though penalty was levied. He further submits that once the assessment order has been passed and no adverse view has been drawn, the penalty order cannot be sustained.
7. Per contra, learned ACSC supports the impugned orders and submits that the revisionist has violated the provisions of the Act as Form - 38 was left blank and if the goods were not seized, the same could have been 3 STRE No. 1247 of 2012 used for multiple times with intent to evade payment of tax.
8. After hearing learned counsel for the parties, the Court has perused the records.
9. It is not in dispute that the revisionist is engaged in the business of taking photographs, including developing, printing and enlargement of photo films. For the said purpose, the printers were purchased from Delhi, which were coming to its lab at Varanasi. The goods were not meant for sale and no adverse inference has been brought on record to show that the goods were meant for sale or the revisionist has intention to sell the same. Even if the blank form was found at the time of interception, the authority ought to have got the same filled up in accordance with law other documents, instead of seizing the goods. Merely because Form - 38 was blank, the same cannot be attributed that there was any intention on the part of the revisionist to evade payment of tax, which was not meant for sale.
10. This Court in M/s Maharani Hardware (supra), S/s Hindisawar Bidi Works (supra), M/s Philips Electronics India Limited (supra), S/s P.B.L. Tag Factor (India) Private Limited (supra) and M/s Two Brothers Filaments Limited (supra) has taken the view that even the blank forms are there, no attribution can be attached for intention to evade payment of tax. Furthermore, in the present case, the assessment order has been passed, which has been brought on record along with the supplementary affidavit, showing no adverse inference in the assessment order has been passed in pursuance of the penalty order. Further, the assessment order shows that the revisionist was never dealing with the sale or purchase of printers. On the contrary, the revisionist was dealing with development of photographs, etc.
11. In view of the aforesaid facts & circumstances of the case as well as the law laid down by this Court, the impugned order dated 22.10.2012 passed by the Commercial Tax Tribunal, Agra for the Assessment Year 2008-09 under section 54(1(14) of the UP VAT Act cannot be sustained in the eyes of law. The same is hereby set aside.
17. The revision is, accordingly, allowed. 4 STRE No. 1247 of 2012
18. The questions of law are accordingly decided in favour of the Revisionist. October 7, 2025 Amit Mishra (Piyush Agrawal,J.) AMIT KUMAR MISHRA High Court of Judicature at Allahabad