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2016 (10) TMI 721

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..... . 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 .....

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..... sel for the revisionist, is not meant for sale in the open market and is primarily used by Oil Companies to examine and check the purity of petroleum products. A 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 that the goods had been received at its Noida Branch office pursuant to a stock transfer e .....

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..... 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 State with an intent to evade payment of tax. In support of his submission, Sri Pandey places reliance upon a judgment rendered by a learned Single Judge of this Court in M/S. Prakash Enterprises, Ghaziabad Vs. Commissioner of Sales Tax 2000 U.P.T.C.1098. Sri Agarwal, learned counsel for the State respondents, on the other hand, st .....

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..... re 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 which however emerges from the facts of the present case are 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. In the opinion of this Court, therefore the allegedly failure on the part of the assessee to deposit the Stock Transfer Invoices dated 16 Nov .....

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..... rm in question giving full particulars of consignment which was being erred in the truck. He had also produced the bills and gate pass. Thus, merely because the Form 31 was not produced it cannot be said that there was any intention to evade the payment of tax. This Court in the case of Bharat Plywood Production (Pvt.) Ltd, Najibadad, Bjnor v. Commissioner of Sales Tax, 1989 U.P.T.C. 1097, has considered the decision rendered by the Tribunal in the case of Commissioner of Sales Tax v. Bulaki Das Vinod Kumar, Ghaziabad, reported in 1987 U.P.T.C 154, wherein it has been held that the intention to evade payment of tax has to be established before levying the penalty under Section 15-A (1) (o) of the Act. Respectfully following the aforesaid de .....

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