Allahabad High Court
M/S Suresh Kumar Sandeep Kumar ... vs Commissioner Commercial Tax U.P. ... on 10 January, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SALES/TRADE TAX REVISION No. - 730 of 2013
Revisionist :- M/S Suresh Kumar Sandeep Kumar Amila Bazar Ghosi Mau
Opposite Party :- Commissioner Commercial Tax U.P. Lucknow
Counsel for Revisionist :- Rishi Raj Kapoor
Counsel for Opposite Party :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri R.R.Kapoor, learned counsel for the revisionist and Sri R.S.Pandey, learned Standing Counsel for the assessee.
2. This revision under Section 58 of the U.P. Value Added Tax Act, 2008 (hereinafter called as "Act of 2008") has been filed assailing the order dated 18.05.2013 passed by Commercial Tax Tribunal.
3. The revision was admitted on 18.9.2013 on the following questions of law:
"(i) Whether, onthe facts and in the circumstances of the case, the Tribunal was legally justified in confirming the penalty under Section 54(1)(14) of U.P.V.A.T. Act, 2008?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in confirming the penalty under Section 54(1)(14) of U.P.V.A.T. Act, while assessing authority imposed the penalty under Section 48(5) of U.P.V.A.T. Act, 2008?"
4. The goods of the assessed-revisionist was being transported from Katni to Mau and the mobile squad intercepted the goods at Mirzapur. Penalty proceedings were initiated against the assessee-revisionist and initially a notice was issued under Section 48(5) of the Act of 2008 for imposing penalty. An assessment was made and penalty of Rs.3,84,000/- was imposed vide order dated 27.9.2010. Against the said order, first appeal was filed, which was decided vide order dated 29.5.2012 and the quantum of penalty was reduced to Rs.96,811/-. The Assessing Authority on 26.12.2012 while exercising power under Section 31 of the Act of 2008 passed rectification order and held that the order dated 27.9.2010 be read as order under Section 54(1)(14) of the Act.
5. Aggrieved by the said order passed by first Appellate Authority, both the assessee and the Revenue filed second appeal before the Tribunal. The second appeal filed by the assessee was numbered as Second Appeal No.230 of 2012 and the appeal filed by the department was numbered as Second Appeal No.178 of 2012. The Tribunal vide judgment dated 18.5.2013 has rejected both the appeals hence the present revision by the assessee.
6. Sri R.R.Kapoor, learned counsel appearing for the revisionist submitted that the Assessing Authority has erred in law in passing the rectification order dated 26.12.2012 under Section 31 of the Act of 2008 after the order of the first Appellate Authority dated 29.5.2012, as the order of the Assessing Authority merged in the order of the first Appellate Authority. He further contended that the two bills being Bill No.260 and 194 were mentioned in Form-38 but by mistake bill No.195 was not recorded in Form 38. He however, contends that Bill No.195 mentioned that the goods which were sent, were insured and was recorded in the books of accounts of the assessee as well as with the Mandi Samiti.
7. Per contra, learned Standing Counsel submitted that there was an intention to evade tax by the assessee and deliberately the Bill No.195 was not entered and only two bills were entered in From 38. He further contends that if the two bills were entered why not the third bill. Learned Standing Counsel further submits that the rectification proceedings were initiated suo motu by the Assessing Authority and it can be made at any stage.
8. I have heard learned counsel for the parties and perused the material on record.
9. From perusal of order of the Tribunal, it is clear that the goods were intercepted by the mobile squad on 17.5.2010 while it was in transit. Form 38, which was being used for carrying the goods, only mentioned about two bills being Bill No.260 and 194 and not Bill No.195. The Taxing Authorities as well as Tribunal had categorically recorded findings that there was an intention to evade tax by the assessee as the third bill was deliberately not mentioned in From 38 and column was left blank.
10. Moreover, the first Appellate Authority had reduced the quantum of penalty imposed by the Assessing Authority and only penalty have been imposed on the goods which has been transported through the Bill No.195 and has not been entered in From - 38.
11. The argument of learned counsel for the revisionist to the extent that order passed by the Assessing Authority under Section 48(5) of the Act of 2008 merged after the order passed by first Appellate Authority and no rectification order could have been passed under Section 31 has no legs to stand as the rectification proceedings are initiated for error apparent on the face of the order and the Assessing Authority has rightly proceeded to pass order and rectified its order. The nature of the penalty proceedings cannot be changed by rectification order under Section 31 of the Act and the penalty proceedings was rightly carried out against the assessee-revisionist as description of goods and Bill No.195 was not entered in Form -38 while the goods were in transit.
12. From the reading of the order of the Tribunal, I find that no case for interference is made out. The revision being devoid of merit is hereby dismissed.
13. The questions of law, so framed, stands answered against the assessee and in favour of Revenue.
Order Date :- 10.1.2023
Kushal
