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2016 (10) TMI 721 - ALLAHABAD HIGH COURTImposition of penalty - Cyclic Hydrocarbons (Marker) - stock transfers - transported from NOIDA to Lucknow - Form-31 in terms of Section 28A of the U.P. Trade Tax Act, 1948 Act - violation of Section 15-A(1)(o) of the 1948 Act - Held that: - the goods were seized during the course of their transit, as per the assessee, from Noida to Lucknow. The assessee had before the authorities admittedly submitted the GR and Stock Transfer Invoices which had accompanied the goods. It is also not disputed by the department that the OC stamp was present along with the documentation which accompanied the goods in question. The allegedly failure on the part of the assessee to deposit the Stock Transfer Invoices dated 16 November 2006 within twenty four hours or at least till 21 November 2006 would neither be determinative nor conclusive insofar as the issue of an intent to evade the payment of tax is concerned. The mere statement of the driver that the goods had in fact been loaded at Delhi and were bound for Lucknow did not in the opinion of this Court conclusively lead one to the conclusion that the transportation was being effected in an attempt to evade assessment or payment of tax. The mere absence of a Form-31 not being fatal to the case of the assessee - penalty not justified. Order of assessment - Held that: - the assessment was based entirely upon the levy of penalty upon the assessee on two occasions. The levy of penalty which formed the subject matter of Second Appeal No. 507/2011 stood anulled by the Tribunal itself. The levy of penalty has been found by this Court to be unsustainable. Since the estimation admittedly was not based on any other material the addition to the declared turnover of the assessee and levy of additional tax also must therefore necessarily fail. Revision allowed - decided in favor of assessee.
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