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S.G.S. India Pvt. Ltd. Versus The Commissioner, Commercial Tax

2016 (10) TMI 721 - ALLAHABAD HIGH COURT

Imposition 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 .....

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ere 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 N .....

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the Opposite Party : C.S.C. ORDER Heard Sri Aditya Pandey, learned counsel for the revisionist and Sri Parv Agarwal who has appeared on behalf of the State-respondents. These two revisions with the consent of parties have been taken up for disposal together. Sales/Trade Tax Revision No. 282 of 2014 lays challenge to the order of the Tribunal upholding the levy of penalty upon the assessee for an alleged violation of Section 15-A(1)(o) of the 1948 Act. Sales/Trade Tax Revision No. 281 of 2014 la .....

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consignment of Marker is stated to have been apprehended during the course of transit from NOIDA to Lucknow. At the time of seizure, it was found that the consignment was not accompanied by Form-31 as is required in terms of Section 28A of the U.P. Trade Tax Act, 1948 Act. The assessing authority places reliance upon the statement of the driver of the vehicle who stated that the goods had in fact been loaded at Delhi and were being directly transported to Lucknow. The case of the assessee was t .....

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e statement of the driver who is stated to have submitted before the authorities that the goods had been loaded at Delhi and were being directly transferred to Lucknow. It has additionally found that no documents evidencing the stock transfer from Delhi to Noida had been produced for its consideration. It has further noted that the stock transfer invoices dated 16 November 2006 which should have been deposited within twenty four hours, had not been handed over to the Departmental authorities at .....

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learned counsel appearing for the revisionist has submitted that admittedly the goods were accompanied with the requisite GR and Stock Transfer Note. He places reliance upon the fact that the documents carried the Originating Certificate (OC) Stamps to prove and establish that the goods were being transferred to its Lucknow Branch Office by way of a stock transfer. Sri Pandey submits that the mere absence of a Form-38 would not lead to a conclusion that the goods were being transported into the .....

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tes that the submission of the driver was not controverted by the assessee at any stage. He further refers to the findings returned by the Tribunal to the effect that the stock transfer invoices dated 16 November 2006 had not been handed over to the departmental authorities till 21 November 2006. All these factors taken cumulatively, in the submission of Sri Agarwal, would clearly justify the imposition of penalty under Section 15-A(1)(o) of the 1948 Act. Clause (o) of Section 15-A(1) envisages .....

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authorized officer to arrive at a satisfaction that the absence of the documents was with an intent to evade payment of tax. The issue, therefore, which falls for consideration is whether in the facts and circumstances of the present case the respondents could be held to be justified at arriving at the conclusion that the failure on the part of the assessee to ensure that the goods were transported under the cover of Form 31 was with an intent to evade payment of tax. The significant aspect whi .....

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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 primary issue which should have engaged the attention of the respondent in the opinion of this Court should have been as to whether the transportation of the goods was in pursuance of a stock transfer as asserted by the assesse .....

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d 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 is evident from what was held by a learned Single Judge in M/S Prakash Enterprises, wherein the law was enunciated in the following terms: "Having heard the learned Counsel for the parties I find that admittedly in the present case, the driver concer .....

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