At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE YASHWANT VARMA
For the Applicant: N.C. Gupta, Advocate. For the Opposite Party: A.C. Tripathi, C.S.
1. Heard Sri N.C. Gupta, learned counsel for the revisionist and Sri A.C. Tripathi, learned counsel for the respondent.
2. This revision has been preferred against an order of the Tribunal dated 9 April 2007 which has upheld and affirmed a levy of penalty under Section 13A(4) of the U.P. Trade Tax Act, 1948. A reading of the order of the Assistant Commissioner establishes that a consignment was stopped and seized by the authorities on 14 November 2003. The goods in question were subsequently released in favour of the assessee upon payment of Rs. 14,400/-. The assessing authority however, proceeded to hold that no evidence had been filed or produced by the assessee to establish that the transaction in question was entered in his books of accounts. The Assistant Commissioner consequently proceeded to levy penalty of Rs. 21,600/-. Before the First Appellate Authority also the assessee also did not meet any success. The Tribunal has affirmed the imposition of penalty in light of the order impugned.
3. Sri Gupta has drawn the attention of the Court to the grounds of appeal as taken before the First Appellate Authority and has also sought to lay stress upon the enclosures which according to him accompanied the said appeal. He submits that the list of enclosures would establish that the sales register, cashbook and ledger confirming monthly sales had been produced. It was his submission that since the transaction in question stood duly proved and recorded in light of the enclosures appended with the appeal, the levy of penalty under subsection (4) would be rendered invalid. In support of his submission, Sri Gupta has relied upon a decision of a Single Judge of the Court in M/s Securipax India Pvt. Ltd. v. The Commissioner of Trade Tax, 2002 NTN (21) 532 to contend that in order to sustain a levy of penalty under subsection (4) a specific finding and conclusion must be recorded and arrived at to the effect that the transaction does not stand reflected in the books of accounts. The Court finds itself unable to sustain this submission for the following reason.
4. As the narration of facts would establish, no books of accounts were admittedly produced before the Assistant Commissioner. That leaves the Court then to consider the contention of Sri Gupta based upon the enclosures which are stated to have accompanied the memo of appeal. It also bears mention here that even this assertion is sought to be urged only on the basis of a list of enclosures which finds mention at the foot of the last page of the memo of appeal.
5. However, admittedly no books of accounts were ever produced before the First Appellate Authority. The Tribunal has further noticed that no application referable to Section 12A was also moved so as to seek introduction of additional evidence either at the stage of First Appeal or before the Tribunal. The observations of the Tribunal as they appear in the order impugned read thus:
6. The Court further notes that in the memo of revision filed before this Court, there is no challenge to this recital as appearing in the order of the Tr
Please Login To View The Full Judgment!
ibunal. In view thereof, this Court must necessarily proceed on the basis that the books of accounts were not produced either at the stage of first appeal or before the Tribunal. 7. Accordingly and for the aforesaid reasons, the levy of penalty cannot be faulted with. The revision lacks merit and is consequently dismissed.