2023 (1) TMI 735 - HC - CST, VAT & Sales Tax
Levy of penalty - levy based on on conjectures and surmises - transaction was duly recorded in books of accounts and accompanied by Form C and payment were made through Banking channel - HELD THAT:- This Court finds that merely on the basis of presumption and statement of the truck driver which was carrying the goods, penalty proceedings have been initiated by the assessing officer. The taxing department did not have any material on record so as to hold that there was any violation by the dealer in bringing the goods from outside the State of U.P. The Form 38 which was accompanying the goods was filled and all the tax invoice alongwith the bilti and transporter's bill was there when the truck was intercepted by mobile squad on 04.08.2016.
Moreover, the statement of a truck driver cannot be the basis for initiating the penalty proceedings. The statement of truck driver which has been recorded by the officer of the department is not corroborated by any proof and the said statement cannot be relied upon for initiating the penalty proceedings. This Court finds that the action of the taxing department was not justified in initiating penalty proceedings without any material on record - The statement of a driver cannot be sole basis for initiation of penalty proceedings and no intention to evade the tax can be established from the statement of driver when the entire documents are there on record.
This Court further finds that the Tribunal itself has recorded a finding that it could not be ascertained whether the truck was unloaded at Mathura or not. Once the department has not shown whether the goods were being brought at Mathura from outside the State of U.P. no question of penalty proceedings can arise.
The order of Tribunal is unsustainable in the eyes of law and same is hereby set-aside - Revision allowed.