2016 (10) TMI 1015

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....epartment put the revisionist to notice in terms of the provisions of Section 48 of the U.P. VAT Act 2008 calling upon him to show cause as to why penalty be not levied upon him for infraction of Section 48 (5) of the Act. The revisionist is said to have submitted his response to the aforesaid notice wherein he contended that the goods had been purchased from a dealer in Kanpur and had been despatched for sale to a dealer situate at Jaunpur. It was further sought to be explained that since the Jaunpur dealer did not accept the goods, they were, subsequent to their release, sold to another dealer on 18 July 2011. The assessing authority refused to accept the explanation so submitted and recorded as many as nine circumstances which clearly, i....

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...., if any, of the dealer or, as the case may be, the person in charge and after giving him an opportunity of being heard, is satisfied that the said goods were omitted from being shown in the accounts, registers and other documents referred to in subsection (1) or not traced to any bonafide dealer or not properly accounted for by any dealer or documents issued by a bonafide dealer with respect to the accompanying goods contained wrong particulars or the goods are undervalued to the extent of more than fifty percent of the value of goods prevalent at the relevant time in the local market area where the said transaction had taken place, with intention to evade payment of tax, it shall pass an order imposing a penalty not exceeding forty percen....

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.... penalty. The authority must further come to the conclusion that the action of the dealer was "with intention to evade payment of tax". It is therefore apparent that in order to sustain the levy of penalty the following two conditions cumulatively must be satisfied:­ A. The occurrence of one or more of the infractions detailed in sub section (5). B. The action of the dealer was actuated with intention to evade payment of tax This Court finds that in the facts of the present case neither the assessing authority nor for that matter the Tribunal has entered any finding as to whether the goods which were seized were actually accounted for in the books of accounts of the dealer or not. The assessing authority, as noted above, primarily ....