M/S East India Transport Agency vs Commissioner Commercial Tax U.P. ...
2019 Latest Caselaw 3968 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 5
 

 
Case :- SALES/TRADE TAX REVISION No. - 654 of 2008
 

 
Applicant :- M/S East India Transport Agency
 
Opposite Party :- Commissioner Commercial Tax U.P. Lucknow
 
Counsel for Applicant :- Rishi Raj Kapoor
 
Counsel for Opposite Party :- C.S.C.
 
And
 
Case :- SALES/TRADE TAX REVISION No. - 655 of 2008
 

 
Applicant :- M/S East India Transport Agency
 
Opposite Party :- Commissioner Commercial Tax U.P. Lucknow
 
Counsel for Applicant :- Rishi Raj Kapoor
 
Counsel for Opposite Party :- C.S.C.
 

 
Hon'ble Ashok Kumar,J.

Heard Sri Kushagra Srivastava, learned counsel for the revisionist at length and Sri B.K. Pandey, learned standing counsel for the Commissioner-respondent.

These are two Trade Tax Revisions filed by the applicant M/S East India Transport Agency, 20-B, Abdul Hameed Street, Kolkatta, through its Manager Sri Suresh Kumar Sharma under Section 11 of the U.P. Trade Tax Act.

The Commercial Tax Revision No.654 of 2008 relates the imposition of tax under Section 7(4) of the Act and the other revision which was reported as Commercial Tax Revision No. 655 of 2008 relates the imposition of penalty under Section 15-A(1)(q) of the Act.

Brief fact of the case are that the applicant is a transport company and was indulge to transport the goods from one place to another. The applicant is registered at Kolkatta, West Bengal. Eighteen packets of tyres were booked by one M/S Sriram Rayons, Sriram Nagar, Kota, Rajasthan to be delivered to the consignee situates at West Bengal namely M/S Tyre Corporation of India Limited, Kankinara, North, 24, Pargana West Bengal. The claim of the applicant is that the goods were loaded in a Truck No. RJ-28/G0007 for transportation from Kota to North 24, Pargana West Bengal and a bility was prepared being bility No. 4564758 dated 19.4.1996. There is no details provided by the applicant so far as the Challan/invoice issued by the seller situates at Kota.

The claim of the applicant is that after loading the goods the vehicle proceeded and it reached at Raksha Check Post, District Jhansi where at the entry check post the person in-charge of the vehicle/driver has applied for issuance of the transit pass (Form 34) and on an application of the driver of the vehicle the transit pass was issued being transit pass no. 1075 dated 21st April 1996 by the check post authority.

In para 5 of the revision petition/affidavit the applicant has stated that in the transit pass it was categorically mentioned that while crossing the exist check post which situates at Naubatpur the transit pass should be cancelled within the specified time.

The contention of the applicant is that the consignment in question has crossed the Naubatpur check post and it reached at its destination at North-24 Pargana, West Bengal however, the transit pass could not be surrendered and cancelled at Naubatpur check post due to mistake of the driver of the vehicle.

When check post authority inquired about the submission/cancellation of the transit pass in question he found that the transit pass in question was not surrendered or cancelled at the exist check post hence, notice was issued to the applicant both for assessment proceedings as well as penalty proceedings. The assessing authority has passed the assessment order under Section 7(4) of the Trade Tax Act on 14.1.1999 by which he has imposed the tax to the tune of Rs.1,70,000/-, and the penalty under Section 15-A(1)(q) to the tune of Rs.8,00,000/-.

Against the order of assessment and penalty first appeals were filed before the Deputy Commissioner (Appeals) Trade Tax, Jhansi.

The claim of the applicant before the first appellate authority was that the assessing authority has proceeded ex parte therefore, the applicant was not aware about the proceedings of assessment and the penalty. It is claimed by the applicant that when the other transaction was intercepted at Raksha Check Post, Jhansi the applicant/agent of the applicant came to know about the assessment and penalty proceedings.

It is submitted that thereafter the applicant came to know that the proceedings are finalised against the applicant.

According to the applicant copy of the assessment order and penalty order was applied which are received on 14.12.1999 and thereafter the first appeals were filed which are entertained without raising the objection of delay. Both the first appeals were filed by the applicant on 30.12.1999.

The first appellate authority has proceeded in the matter and has passed the order on 1.2.2001 by which he has confirmed the orders passed by the assessing authority fixing the tax liability as well as penalty. Against the order passed by the first appellate authority dated 1.2.2001 (Annexdure 4 to the revision petition) second appeals under Section 10 were filed by the revisionist before the Trade Tax Tribunal, Jhansi Bench, Jhansi. The second appeals filed by the applicant were dismissed by the Tribunal vide impugned order dated 9.1.2008, against which these two revision petitions are filed.

Heard learned counsel for the revisionist and learned standing counsel.

The contention of the counsel for the revisionist is that admittedly Form 34 (transit pass) was not surrendered at the exist check post, which was a bona fide mistake on the part of the driver of the vehicle. Learned counsel for the revisionist submits that in fact the goods are delivered to the buyer, who situates at North 24, Pargana West Bengal on 30.4.1996. Learned counsel for the revisionist has submitted that before the Tribunal an application under Section 12-B of the Act was filed along with a certificate issued by the buyer dated 24.3.2000 certifying therein that the buyer has received the consignment in question.

Section 12-B reads as follows :

"12-B. Additional Evidence on appeal.- The assessee shall not be entitled to produce additional evidence, whether oral or documentary, [before the Appellate Authority or the Tribunal except] where the evidence sought to be adduced is evidence, which the Assessing Authority had wrongly refused to admit or which after exercise of due diligence was not within his knowledge or could not be produced by him before the Assessing Authority, and in every such case, upon the additional evidence being taken on record, reasonable opportunity for challenge or rebuttal shall be given to the [Commissioner]."

Section 12-B provides that the assessee shall not be entitled to produce additional evidence, whether oral or documentary, before the appellate authority or before the Tribunal except where the evidence sought to be adduced as evidence, which the assessing authority had wrongly refused to admit or which after exercise of due diligence was not within his knowledge or could not be produce by him before the assessing authority .....  .

In the instant case, the claim of the applicant is that the certificate issued by the buyer who situates at West Bengal clearly confirms the delivery of the goods on 30.4.1996.

The Tribunal has proceeded in the matter and rejected the application filed under Section 12-B by recording the following findings, which is quoted hereinbelow :

^^;gkW f}rh; vihyh; Lrj ij O;kikjh dh rjQ ls f}rh; vihy la0 [email protected] esa ,d isij uEcj&14c tks viksyks Vk;lZ fy0 fn0&24&3&2000 nkf[ky fd;k x;kA [email protected];kikjh dh rjQ ls /kkjk 12ch ds rgr vfrfjDr lk{; nkf[ky djus ds fy, dksbZ fyf[kr izkFkZuk i= gekjs le{k izLrqr ugha fd;k x;k gSA vihydrkZ dh rjQ ls tks ;g vfHkys[k&14c bl vihy esa nkf[ky fd;k x;k blh vfHkys[k dh QksVks izfr f}rh; vihy la[;k [email protected] esa Hkh layXu djds nkf[ky dh x;h gSA bl vfHkys[k isij uEcj & 14 c ij jkT; izfrfuf/k dh rjQ ls ;g vkifRr dh x;h gS fd bl izek.k i= ds lkFk dksbZ vkSUFksfVd rF; ugha fn;k x;k gS fd eky izkUr ckgj dSls x;k vkSj u gh O;kikjh }kjk dksbZ lk{; izLrqr dh x;h gSA ryohnk i=koyh ds voyksdu ls ;g fofnr gksrk gS fd tks cgrh O;kikjh us izos'k lgk;rk dsUn esa izkIr dh mlesa gh bl ckr dk uksV vafdr gS fd ;g eky 'kqDykxat ls iYVh gksdj vkxs tk;sxkA O;kikjh dh rjQ ls ,slh dksbZ Hkh lk{; nkf[ky ugha dh x;h gS fd bl th-vkj- la[;k 4564758 ls lEcfU/kr eky 'kqDykxat esa fdl frfFk dks jokuk gqvk O;kikjh dh rjQ ls tks viksyks Vk;lZ fy0 }kjk tkjh izek.k i= nkf[ky fd;k x;k gS ;|fi O;kikjh ds }kjk /kkjk&12ch vf/kfu;e ds rgr bl vfrfjDr lk{; dks i=koyh ij layXu djus dk dksbZ izkFkZuk i= izLrqr ugha fd;k x;k gS ysfdu fQj Hkh ;g vfrfjDr lk{; ge yksxksa ds le{k pWwfd [email protected];kikjh }kjk izLrqr dh x;h gS blfy, ge okndkjh ds fgr dks loksZPp ekurs gq, ;gh U;k;ksfpr le>rs gS fd vc O;kikjh }kjk nkf[ky bl lk{; ij Hkh fopkj dj fy;k tk;s vkSj ,slh ifjfLFkfr;ksa esa bl isij uEcj&14c izek.k i= dks i=koyh ij layXu djus ds mfpr vk/kkj ge ikrs gS vkSj rFkkuqlkj bls crkSj vfrfjDr lk{; xzkg; djrs ds mfpr vk/kkj gks tkrs gSA^^

During the course of argument learned counsel for the applicant has placed reliance of grounds of appeal filed by the applicant before the Tribunal. Ground No.6 of the grounds of appeal filed by the applicant reads as follows :

"Because after receiving the First Appellate Order, the appellant was come to know the full details of the consignment as mentioned in the disputed Trip Sheet and after getting the aforesaid information the appellant wrote a letter to his Head Office, Calcutta and the appellant received a Delivery Confirmation Letter from the consignee M/S Apollo Tyres Ltd. 207 A B Road (Badamtala) Kanknara, 24 Pargana North, which was received at Tyre Corporation India Kankinara (W.B.) on 30.4.1996."

The fact reveals that the first appeal were filed on 30.12.1999 by the applicant, against the orders of the assessment and penalty dated 14.1.1999 and 31.1.1997. Admittedly no application under Section 12-B or the certificate allegedly issued by the buyer dated 24.3.2000 was filed by the applicant before the first appellate authority. The first appeal was decided on 1.2.2001 i.e. much after the date of preparation of the alleged certificate dated 24.3.2000. The contents of para 6 of the grounds of appeal therefore are not supporting the claim of the applicant. The first appeal was decided after issuance of the certificate and admittedly the alleged certificate was not filed before the first appellate authority.

In view of the aforesaid facts and in view of the reasons recorded by the authorities below as well as by the Tribunal, I find no error in the orders passed by the authorities below and by the Tribunal. No question of law is involved in both the revision petitions. Accordingly, both the revisions are dismissed.

Order Date :- 02.05.2019

S.S.