TMI Blog2015 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... andatory and the Taxing Authorities are under an statutory obligation to examine the material on record and discuss the merits of the matter and record a clear finding with regard to the intention of the dealer or importer as to whether there was or was not an intention to evade tax. Both the orders of the Assessing Authority, Appellate Authority as well as Tribunal are silent on this aspect of the matter and therefore the orders dated 28.02.2011, 22.06.2011 and 23.11.2011 are illegal and in violation of the mandatory provisions of Section 54 (1) (14) of the VAT Act, 2008 and are accordingly set aside. The matter is remitted to the Assessing Authority to reconsider the matter in the light of the observations made above and the law laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were not accompanied by Form-38 and therefore, a presumption was drawn by the authorities that the goods had been brought from outside the state and sold within the state of U.P with the intent to evade the tax. Accordingly penalty proceedings were initiated against the Food Corporation of the India and the said penalty was levied under Section 54 (1) (14) of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the VAT Act, 2008). The Assessing Authority, Joint Commissioner, Faizabad relying upon a seven judges Constitution Bench judgment of the Supreme Court reported in AIR 1977 SC 2279, R.S. Joshi etc. Vs. Ajit Mills Ltd. and Another etc., in which the Supreme Court has held that where admittedly the goods are not accom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the part of the dealer or importer to actually sell the goods in the State of U.P. with the intention of evading tax. He has placed reliance upon a Division Bench decision of this Court reported in 2009 NTN (41) 189, M/s Rama Pulses Vs. State of U.P. and Others, wherein the provisions of section 54 (1) (14) were being considered by the High Court and the Division Bench of this Court relying upon the judgment of the Supreme Court reported in 1983 U.P.T.C. 198 SC 198, Jain Shudh Vanaspati Ltd, Ghaziabad Vs. State of U.P. and Others has held that the intention to evade the tax has been found to be a necessary ingredient before imposing the penalty under the Act on the dealer or any other person. In the absence of any finding by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted nothing further remains for the Assessing Authority but to proceed ahead and impose penalty and therefore reconsidering the matter for purposes for discovering the intention to evade tax would be a mere empty formality. Sri Sanjieva Shankhdhar has referred to the 7 Judge Constitution Bench judgment of the Supreme Court reported in AIR 1977 SC 2279, R.S. Joshi etc. Vs. Ajit Mills Ltd. and Another etc., particularly paragraph 19 of the said judgment where the Supreme Court has rejected the notion that a penalty or a punishment cannot be cast in the form of an absolute or no-fault liability but must be preceded by mens rea. Further what is to be noted is that the provisions of the statute being considered by the Constitution Bench w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lumn 3 against the same serial no. of the said table: ........................... Where the dealer or any other person, as the case may be, - (i) imports or attempts to import or abets the import of any goods, in contravention of the provisions under section 50 or section 51 with a view to evading payment of tax on sale of - (a) such goods; or (b) goods manufactured, processed or packed by using such goods; or (ii) transports, attempts to transport any taxable goods in contravention of any provisions of this Act ; 40% of the [value] of goods In the present case recording of a finding with regard to the intention of the dealer or importer or any other person importing such goods within the State of U.P. with a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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