2018 (12) TMI 769

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.....P. Trade Tax Act, 1948 (hereinafter referred to as the 'Act') for the assessment year 2003-04. The assessee is a duly incorporated company. It had imported certain goods from Nepal against which penalty under Section 15A(1)(o) of the Act, Rs. 4,20,540/- was imposed on the assessee by order dated 31.03.2004. The said penalty was affirmed both by First Appeal Authority as also by the Tribunal. 3. Upon hearing learned counsel for the parties, the questions of law are re-framed as below: "(i) Whether, the finding of infringement of Section 28-A of the Act recorded by the Tribunal is self contradicted by its own finding, which if accepted would establish that the goods were meant for outside the State of U.P. ? (ii)....

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....at there was any violation of Section 28-A of the Act. 6. The assessee being obliged to comply with the provisions of the Act and the Rules framed thereunder, had while importing the goods ensured that the necessary and valid Import Declaration Form-31 and the trip sheet/transport manifest, correctly described the consignee as the assessee at Saharanpur. No defect having been found in those documents, the discrepancy with respect to the assessee's description found recorded in the invoice and the bill of entry stood reconciled. Those may, if at all be matters to be examined during assessment. 7. It has further been sought to be clarified that the assessee being engaged in the import of goods as a part of international trade,....

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....re does not appear to be recorded any finding of fact as to intention to evade tax on part of the assessee. In fact the assessing authority had recorded a finding that it could not be said there was no intention to evade payment of tax. For a valid levy of penalty, a positive finding as to intention to evade tax was a sine qua non. Penalty could not be imposed on a mere possibility of intention to evade tax. 11. Also, there was no room to assume existence of such intent by presuming a higher evidentiary value in favour of the invoice document and the bill of entry so as to over ride or ignore the entries made in the statutory Import Declaration Form-31 and other prescribed documents found accompanying the goods. Under Section 28-A of the....