M/S Jaypeeco India Lko.Throu Its ... vs Commissioner Of Commercial Taxes ...
2022 Latest Caselaw 5759 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVE JUDGMENT
 

 
Court No. - 8
 

 
Case :- SALES/TRADE TAX REVISION DEFECTIVE No. - 183 of 2012
 

 
Revisionist :- M/S Jaypeeco India Lko.Throu Its Prop. Sri Vibhu Agarwal
 
Opposite Party :- Commissioner Of Commercial Taxes Lko.
 
Counsel for Revisionist :- Mudit Agarwal,Anand Dubey
 
Counsel for Opposite Party :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Anand Dubey, learned counsel for the revisionist as well as Sri Rohit Nandan Shukla, learned Standing Counsel for the respondent.

2. Present revision has been filed with delay of one month and seventeen days. Revision is accompanied with application for condonation of delay alongwith an affidavit. It is stated in the affidavit that the certified copy of the order of Tribunal was received by the revisionist on 03.08.2012. The revisionist gave the same to his accountant on 30.10.2012. Subseqently, the accountant of the revisionist left the job, and the order of Tribunal was left kept in the file of that assessment year. Subsequently, new accountant came and he found the order lying in the file on 07.12.2012, after which the order was given to the counsel for the revisionist and it is then the present revision was prepared and filed with some delay. It is submitted that the delay caused in filing instant revision is not deliberate, but due to the aforesaid reasons.

3. Perused the application for delay as well as affidavit accompanying the same. The cause shown is deemed to be sufficient. Application for condonation of delay is allowed. Delay in filing the revision is hereby condoned.

4. By means of present revision under Section 58 of the Value Added Tax Act, 2008 (hereinafter referred to as "the Act, 2008") the revisionist had assailed the order of Commercial Tax Tribunal, Bench-I, Lucknow (hereinafter referred to as "the Tribunal"), thereby dismissing the second appeal of the revisionist and up holding the penalty imposed upon the revisionist under Section 54(1)(14) of the Act, 2008, pertaining to assessment year 2010-11.

5. It has been submitted by learned counsel for the revisionist that the revisionist/assessee is duly registered under the Act, 2008 as well as under the Central Sales Tax Act, 1956. With regard to the present controversy, it is submitted that the revisionist received purchase order from a firm named M/s Pancham Realcon Pvt. Ltd., A/2, Civil Lines, Tashkand Marg, Allahabad for purchase of Iron Rods (Saria) of various specifications vide purchase order dated 15.01.2011. M/s Pancham Realcon is also a registered dealer duly registered both under the Act, 2008 and the Central Sales Tax Act. In order to filfill the above order, the revisionist placed an order with a manufacturer M/s Kohinoor Steel Pvt. Ltd., Village - Khuchidih, P.S. Chandil, District - Saraikella - Kharsawan, Jharkhand. It has been submitted that M/s Kohinoor Steel Pvt. Ltd. is a dealer registered under the Jharkhand VAT laws and the Central Sales Tax Act and is engaged in the business of manufacture of iron and steel. Against the purchase order placed by the revisionist, M/s Kohinoor Steel prepared three invoices/challans dated 31.01.2011 and thereafter dispatched the said goods.

6. Learned counsel for the revisionist has submitted that he has sent three Form-38, issued by the Assessing Authority with instructions that the said forms be sent along with the goods in compliance of the provisions of the Act, 2008. The goods relating to the three invoices were loaded in three separate Trucks being trucks no. HR 55 K 3368, HR 55 K 3630 and JH 02 N 3436. Present case pertains to Truck No. HR 55 K 3368, which was checked at Rewa Road, Allahabad on 03.02.2011, which was detained by the Mobile Squad Authorities of the Commercial Tax Department and a detention memo was issued on the same day. The driver of the vehicle was called upon to present the documents. A show cause notice was issued to the revisionist on 04.02.2011, stating that on inspection of the vehicle no papers were produced despite the fact that goods were being imported from outside the State and that the goods were destined for Lucknow were found to be on a different location from the route from Jamshedpur (Jharkhand) to Lucknow (U.P.) and therefore it was held that the goods were being transported with intention to evade tax and hence penalty was imposed on the revisionist.

7. The revisionist thereafter preferred first appeal before the Additional Commissioner Grade-II (Appeals), Commercial Tax, Lucknow. The first appeal was dismissed by means of order dated 12.08.2012. While rejecting the first appeal the First Appellate Authority has recorded that the truck carrying the goods was detained and inspected at 10 AM on 03.02.2011, no documents were being carried by the driver of the vehicle. The relevant papers were produced only after 12 hours. It was further found that the revisionist was found to be importing goods worth Rs. 45 lakhs, but he could not prove that the said goods were being sold by him to a registered dealer, giving rise to the apprehension that the goods were being sold to some unregistered dealer with intention to evade tax. The goods were subsequently released on payment of security. The first Appellate Authority has taken into consideration the reply of the revisionist stating that he has produced all the documents and goods had been sent from Jamshedpur (Jharkhand) to Lucknow, but due to the fact that the order received from M/s Pancham Realcon Pvt. Ltd., Allahabad the truck was diverted to Allahabad to deliver the said goods. It has further been recorded that the documents have been manufactured which were filed by the revisionist subsequently, do not indicate any transaction with M/s Pancham Realcon Pvt. Ltd., Allahabad and therefore it is clear that the said goods were not meant to be sold at Allahabad. The driver of the vehicle also did not carry any proper documentation for transporting the goods to Allahabad and therefore the first Appellate Authority concluded that levy of penalty and tax on the revisionist was proper and reasonable and therefore rejected the first appeal.

8. Aggrieved by the order of the first Appellate Authority, the revisionist challenged the same before the Tribunal. By means of impugned order dated 24.07.2012, the second appeal of the revisionist has been rejected by the Tribunal. Hence this revision.

9. The Tribunal has recorded that when the vehicle transporting the said goods was detained, no document was produced. It is only after detention memo was issued by the Officer of the Mobile Squad, Form-38, bill, bilty and other documents were produced that too after 12 hours, which gave a reasonable ground for apprehension and doubt that the said documents have been prepared subsequently. The reason given by the revisionist that the said documents were being carried by their representative who had not accompanied the truck and therefore the said papers could not be produced at the time of inspection. The Tribunal was not satisfied with the reply given by the revisionist in this regard. The other reason recorded by the Tribunal for up holding the order of penalty was that the goods which were being transported from Jamshedpur (Jharkhand) to Lucknow, this fact has been recorded in the bilty as well as Form-38 produced by the revisionist. The reason for the vehicle having been diverted from the set route is the fact that the order from M/s Pancham Realcon Pvt. Ltd., Allahabad had to be satisfied and because there was delay in fulfilling their obligation, the truck was directly sent to Allahabad. The Tribunal has recorded that they were not satisfied with the reply given by the revisionist in this regard. The Tribunal was also pursuaded by the fact that despite aforesaid goods having been released on deposit of security on 15.02.2011, still the goods were not supplied to M/s Pancham Realcon Pvt. Ltd., Allahabad and the said transaction does not find mentioned in the return filed by the revisionist, which confirms the apprehension of the taxing authorities that reasons given by the revisionist is nothing but a story which has been set up only to evade tax. In case the revisionist had any order from M/s Pancham Realcon Pvt. Ltd., Allahabad, which was to be satisfied, then the said transaction was to be found in the returns filed by the revisionist before the VAT Authorities. All the documents produced by the revisionist clearly pertain to their transportation from Kushidi (Jharkhand) to Lucknow and there was no amendment in the bilty which could indicate that the goods were to be transported from Lucknow to Allahabad.

10. On the basis of above reasons, the Tribunal has held that in exercise of powers under Section 54(1)(14) of the Act, 2008, penalty imposed on the revisionist was just, proper and reasonable. The documents produced by the revisionist were not relied upon by the Tribunal on the ground that the same have been prepared as an after thought.

11. Learned Standing Counsel on the other hand has supported the orders passed by the Assessing Authority, First Appellate Authority and the Tribunal and submitted that the goods were being transported from Jamshedpur (Jharkhand) to Lucknow (U.P.). The vehicle was detained at Allahabad, at a place which was not on the pre scheduled route. On detention of the said vehicle, the driver was found not be carrying any documents and it is only after detention order was passed, the documents were produced by the revisionist, which pertain to transaction of goods from Jamshedpur (Jharkhand) to Lucknow (U.P.). The bilty, Form-38 and other documents indicated that the goods were being transported from Jamshedpur (Jharkhand) to Lucknow (U.P.). The explanation given by the revisionist that in order to satisfy the order placed by M/s Pancham Realcon Pvt. Ltd., Allahabad, the vehicle was diverted to Allahabad, also is not found to be acceptable for the reason that it was required that the papers were to be amended, so as to indicate that the goods were to be transported from Lucknow to Allahabad or directly from Jamshedpur (Jharkhans) to Allahabad.

12. There is always apprehension that in absence of relevant documents the goods can be sold to unregistered dealers and thereby transaction would not be recorded in the books of account and the tax due would also be evaded. As per provisions contained in Section 50 of the Act, 2008, provides for penalty to stem the evasion of tax and to see that all the transactions are duly recorded in the books of account of the assessee which can subsequently be looked into by the taxing authorities.

13. In the present case, the Tribunal being last fact finding authority has considered the submissions made by the revisionist as well the documents produced before them. The Tribunal after considering the entire facts and circumstances of the case has given cogent reasons for not accepting the version of the revisionist, and no interference is required to be made by this Court in exercise of its revisional powers.

14. In similar circumstances, this Court in Trade Tax Revision No. 181 of 2012 - M/s Jaypeeco India Lko. Through its Prop. Sri Vibhu Agarwal Vs. Commissioner of Commercial Taxes Lko. (alongwith connected matter), decided on 03.02.2020, the Court dismissed the revisions declining to interfere with the judgment and order of the Tribunal.

15. Considering that the order of Tribunal assailed by the revisionist in Trade Tax Revision No. 181 of 2012, has already been dismissed on identical set of facts, this Court finds no reason to interfere with the judgment of the Tribunal in the present case also.

16. The Tribunal has rejected the revision after duly considering all the relevant facts and pleas raised by the assessee hence, no ground exists for interference with the order of the Tribunal and no question of law arises for determination by this Court.

17. Having Considered the submissions made by learned counsel for the parties and on perusal of record, this Court is satisfied that the order of the Tribunal does not require any interference.

18. The revision is devoid of merits and is accordingly dismissed.

Order Date :- 04.07.2022

A. Verma

(Alok Mathur, J.)