Allahabad High Court
The Commissioner Commercial Tax Lko. vs M/S Biglit Auto Pvt. Ltd. on 17 January, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- SALES/TRADE TAX REVISION No. - 597 of 2014 Revisionist :- The Commissioner Commercial Tax Lko. Opposite Party :- M/S Biglit Auto Pvt. Ltd. Counsel for Revisionist :- S.C. Counsel for Opposite Party :- Nishant Mishra Hon'ble Alok Mathur,J.
Heard Mr. B.K. Pandey, learned Standing Counsel for the revenue/revisionist as well as Mr. Bipin Kushwaha, learned Advocate holding brief of Mr. Nishant Mishra, learned counsel for the respondent.
The revenue has assailed the order of the Commercial Tax Tribunal dated 13.06.2014, thereby upholding the order of the First Appellate Authority. It has been submitted by learned counsel for the revisionist/revenue that respondent is a dealer in Tractor parts and is registered under the U.P. Value Added Tax Act. The issue relating to the present controversy relates to the assessment year 2010-11. It has been submitted that Vehicle No. UP-14M/AT-3431 was intercepted by the Mobile Squad authority, Commercial Tax, Unit-7, Ghaziabad on 20.07.2010 and the dealer was found to be importing goods from outside the State.
And the goods carried by the revisionist were found to be different from what was mentioned in form 38 as well as the other documents being carried by the driver. The goods were mentioned to be auto tractor parts, but on physical examination pressure horns were discovered which according to the authority were not auto tractor parts, and therefore as the goods being carried on the stock transfer invoice being different from the goods declared in form 38, penalty was imposed.
The revisionist preferred a first appeal before the additional Commissioner Grade-II, Ghaziabad, which was rejected by means of order dated 2.5.13.
A second appeal was preferred before the Tribunal challenging the order of the first appellate authority. Before the Tribunal it was contended by the revisionist that the goods were being carried with proper documentation along with Form 38 and were the same goods as declared. It was submitted that 18 items which were being transported were tractor parts. This dispute related only to pressure horns which according to the Authority are not used in tractors but are used in other vehicles like car, three wheeler etc. it was further submitted that revisionist is the authorised dealer for Routes Auto Product Private Limited, Coimbatore and the declaration was giving that the pressure horns were suitable for being use in tractors. It was further submitted that the pressure horns were being transported by them for last many years, but no objection was raised by the Department in this regard. The Tribunal while allowing the appeal returned a finding that the pressure horns are used in tractors and further that no inquiry was conducted by the Department, nor any expert opinion sought as to whether the pressure horns could be used in tractors or not before levying penalty. They further concluded that no distinction could be made between electronic horns and pressure horns so as to levy penalty on the revisionist for transporting goods the identity of which was different from the goods declared in the documents.
The Learned Counsel for the respondent submits that the order passed by the assessing authority was illegal and arbitrary inasmuch as the goods being carried by the revisionist were pressure horns which are used in tractors and they have been dealing in such goods for a number of years. Only on the basis of presumption the goods were detained and subjected to penalty. No enquiry was conducted nor any expert opinion taken by the authorities before leading penalty, and therefore the order imposing penalty was illegal and arbitrary and level to be set aside.
I have heard the Counsel of the parties and produce the record.
The respondent who is the authorised dealer of auto tractors was carrying goods when the vehicle was intercepted by the mobile squad and amongst other items it was discovered that he was carrying pressure horns which according to the authority were not Tractor parts, and therefore it was concluded that the description of goods in the documents carried by the transporter were different from the goods found on physical inspection and therefore penalty was imposed as per provisions contained in section 54 (1) (14) of the Trade tax act. The first appellate authority rejected the contention of the respondent. In second appeal the Tribunal allowed the appeal of the revisionist by holding that the pressure horns were used in tractors, and that no enquiry had been conducted by the authorities before coming to a conclusion that the pressure horns could not be used in tractors, nor did it seek any expert opinion in this regard, and therefore the levying of penalty on the revisionist was illegal and arbitrary and was therefore set aside.
In the instant revision no material has been produced by the revenue from which it could be determined that the finding of the Tribunal is contrary to record or perverse and that pressure horns cannot be used in auto tractors and that the levy of the penalty was justified.
The Tribunal, has held that the pressure horns which were being transported were for use in the tractors, and no attempt has been made nor any material placed before us to upset the said finding recorded by the Tribunal, and therefore we find no infirmity with the findings recorded by the Tribunal.
In light of the above there is no merit in the division which is hereby dismissed.
Order Date :- 17.1.2020 A. K. Singh (Alok Mathur, J.)