2016 (10) TMI 721

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....ding the levy of penalty upon the assessee for an alleged violation of Section 15-A(1)(o) of the 1948 Act. Sales/Trade Tax Revision No. 281 of 2014 lays challenge to a best judgment assessment which was undertaken and is a direct consequence to the levy of penalty upon the assessee. The facts on which there is not much dispute are as follows: The assessee is stated to be engaged in the sale and supply of Cyclic Hydrocarbons (Marker). This product, in the submission of the learned counsel for the revisionist, is not meant for sale in the open market and is primarily used by Oil Companies to examine and check the purity of petroleum products. A consignment of Marker is stated to have been apprehended during the course of transit from NOIDA....

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....levy of penalty. Insofar as the best judgment assessment against the assessee is concerned, it has found that the estimation made by the assessing authority was not liable to be sustained. Accordingly, from the estimation as made by the assessing authority it has directed a deduction of Rs. 14,00,000/- and has consequently upheld the rest part of the order of the assessing authority. Sri Pandey, learned counsel appearing for the revisionist has submitted that admittedly the goods were accompanied with the requisite GR and Stock Transfer Note. He places reliance upon the fact that the documents carried the Originating Certificate (OC) Stamps to prove and establish that the goods were being transferred to its Lucknow Branch Office by way o....

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....ing or attempting to transport goods without the same being covered under proper and genuine documents. The provision then casts a further obligation upon the authorized officer to arrive at a satisfaction that the absence of the documents was with an intent to evade payment of tax. The issue, therefore, which falls for consideration is whether in the facts and circumstances of the present case the respondents could be held to be justified at arriving at the conclusion that the failure on the part of the assessee to ensure that the goods were transported under the cover of Form 31 was with an intent to evade payment of tax. The significant aspect which however emerges from the facts of the present case are that the goods were seized duri....

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.... transportation was being effected in an attempt to evade assessment or payment of tax. The mere absence of a Form-31 not being fatal to the case of the assessee is evident from what was held by a learned Single Judge in M/S Prakash Enterprises, wherein the law was enunciated in the following terms: "Having heard the learned Counsel for the parties I find that admittedly in the present case, the driver concerned had stopped the vehicle at the relevant check post and filled the form in question giving full particulars of consignment which was being erred in the truck. He had also produced the bills and gate pass. Thus, merely because the Form 31 was not produced it cannot be said that there was any intention to evade the payment of ....