M/S Shimla Fancy Store vs The Secretary Excise & Taxation ...
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             HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                Civil Revision No. 113 of 2016

                                                Date of decision: 02.08.2021




                                                                                 .

    M/s Shimla Fancy Store                                               ...Petitioner

                                      Versus





    The Secretary Excise & Taxation Department
    and others                                    ...Respondents
    ____________________________________________________
    Coram:





    The Hon'ble Mr. Justice Ravi Malimath, Acting Chief Justice

    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

    Whether approved for reporting1 :

    For the Petitioner:               Mr. Goverdhan Lal Sharma, Advocate.

    For the Respondents:              Mr. Ajay Vaidya, Senior Additional


                                      Advocate General.

                         Through Video Conference
    ____________________________________________________




    Jyotsna Rewal Dua,J.

Learned Tax Tribunal as well as learned Revisional

Authority have affirmed the order passed by the Assessing

Authority, imposing penalty of Rs. 40,000/- (Forty Thousand)

upon the petitioner for contravening the provisions of Sections

34(2) and 34(4) of The Himachal Pradesh Value Added Tax Act,

2005 (hereinafter referred to as the Act). Aggrieved, the petitioner

Whether Reporters of local newspaper are permitted to see the judgment ?

has preferred instant revision petition under Section 48(1) of the

Act.

2(i) The petitioner purchased goods from Standard Fire

.

Works and others Shiva Kasi (TN). On 04.05.2007, while crossing

the Multi Purpose Barrier Parwanoo, this consignment was

detained. The Assessing Authority found that the consignment for

Rs. 3,47,898/- (Three Lacs Forthy Seven Thousand Eight

Hundred and Ninety Eight) of value of fire works was under

valued to the tune of Rs. 2,00,000/- (Two Lacs) as compared with

the printed price and invoice value. The petitioner pleaded guilty

before the Assessing Authority and requested for compounding

the offence on the spot without according any opportunity of

hearing. The Assessing Authority held that provisions of Sections

34(2) and 34(4) of the Act had been contravened by the petitioner

with an intention to evade tax. The petitioner/dealer admitted his

guilt and requested to compound the case. Therefore, vide order

dated 04.05.2007 penalty, amounting to Rs. 40,000/- (Forty

Thousand) was imposed upon him under Section 34(7) of the Act.

The petitioner deposited the penalty whereafter the vehicle and

the consignment was released.

2(ii). In the appeal filed by the petitioner, the Appellate

Authority on 13.12.2007 concluded that detailed order was not

passed by the Assessing Authority as to how there was under

valuation of the consignment. The Appellate Authority held that

the appellant was in possession of the documents, therefore,

penalty under Section 34(7) of the Act could not be imposed on

.

him.

2(iii). Revisional proceedings were taken up under Section

46(1) of the Act. The Revisional Authority on 21.12.2012 held that

there was no evidence on record to support petitioner's

contention that there was discount in the rates of crackers and

fire works. Therefore, the order passed by the Appellate Authority

in favour of petitioner was quashed. The petitioner was held to

have violated Sections 34 (2) and (4) of the Act. The order

passed by the Assessing Authority imposing penalty upon the

petitioner under Section 34(7) of the Act for noticing tax evasion

was upheld.

2(v). The petitioner's revision under Section 46(3) of the

Act was dismissed by the learned Himachal Pradesh Tax Tribunal

on 13.04.2016. The order passed by the Assessing Authority on

04.05.2007 has been upheld.

It is in this background that the present petition has

been filed.

3. Learned counsel for the petitioner urged that penalty

could not have been imposed upon the petitioner as he was

carrying all the required documents. No opportunity of being

heard was afforded to the petitioner before imposing the penalty.

No order was issued by the Assessing Authority with respect to

imposition of penalty. Learned Senior Additional Advocate

.

General supported the impugned order. The only question of law

that can be said to be involved in this petition is:- Whether

learned Tribunal erred in appreciating the facts and law in

passing the impugned order upholding imposition of penalty upon

the petitioner under Section 34(7) of the Act.

4.

The Assessing Authority had found the consignment

to be under value to the tune of Rs. 2,00,000/- (Two Lacs) as

compared with the printed price and invoice value. Statement of

the petitioner was recorded wherein he admitted his guilt. The

petitioner pleaded guilty and requested for compounding the case

on the spot without according him opportunity of being heard. It is

not the case of the petitioner that he was pressurized to admit his

guilt. The voluntary admission of the petitioner leaves no manner

of doubt that value of the fire crackers shown in the invoice was

not correct and genuine. There was violation of Sections 34(2)

and (4) of the Act on part of the petitioner. The learned Tribunal

has also observed that description of the goods and the weight

had also not been shown in the GRs, which further shows that

correct and genuine information had not been supplied to the

Department by the petitioner. Non-reflection of correct value of

the firecrackers would have certainly resulted in their being sold

without issuing tax invoices or shown sold at the lesser price than

actual charged or being sold on duplicate invoices, which would

.

have resulted in evasion of VAT, had the consignment not been

detained by the Department. Hence, the conclusion drawn by the

respondent that there was an attempt to evade tax, by under

valuation of the goods, appears to be reasonable. Therefore, the

imposition of penalty under Section 34(7) of the Act cannot be

faulted. Questions of law is answered accordingly. Therefore, we

hold that the learned Tax Tribunal as well as the Revisional

Authority committed no error in affirming the order passed by the

Assessing Authority imposing penalty of Rs. 40,000/- (Forty

Thousand) upon the petitioner. The revision petition is dismissed

with pending applications, if any.

                                             ( Ravi Malimath )
                                            Acting Chief Justice





    2nd August, 2021 (K)                    ( Jyotsna Rewal Dua )
                                                   Judge