2019 (5) TMI 798

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.... Priya Das Motia Lal & Company sold 354 bags of Chilly against Invoice No. 134 dated 26.11.2014 valuing sum of Rs. 4,38,964/of which the seller has charged the tax and also the Mandi Shulk therefore, the grand total of 354 bags of Chilly comes Rs. 4,71,886/. In the tax invoice the gross weight has been mentioned as 12011 kg. and the weight of Bardana is mentioned as 460 kg. According to the revisionist, the revisionist has instructed the seller M/s. Priya Das Motia Lal and Company to send the said 354 bags of Chilly to the cold storage namely M/s. S.J. Ice and Cold Storage (Pvt). Ltd. just to avoid unnecessary burden of transportation, loading and unloading etc. and while instructing the seller the revisionist has also issued a letter dated 26.11.2014 addressed to the said cold storage requesting to take the delivery of 354 bags of Chilly and keep the same in the cold storage on behalf of the revisionist. A survey was conducted at the aforesaid cold storage by the Special Investigating Bureau Commercial Tax, RangeA, Agra, on 18.12.2014, where the surveying party has noticed that the stock register maintained by the said cold storage discloses an entry of deposit of 354 bags o....

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....passed by the Assessing Authority. Learned counsel for the revisionist has submitted that no penalty proceeding can legally be initiated against the revisionist under Sub Section (5) of Section 48. He has referred the provision of Sub Section (5) of Section 48 of the VAT Act, which is quoted hereinbelow: "Section 48 power to seize goods (5) If such authority, after taking into consideration the explanation, 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 an dealer or the 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 per cent of the value o....

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.... : Section 21Accounts and documents to be maintained by dealers: "Except as provided in sub-section (4) every dealer liable to pay tax while consigning or delivering any taxable goods to another dealer whether as a result of sale or otherwise, shall issue to the purchaser or consignee of goods, a legible challan or transfer invoice in the prescribed manner containing such particulars as may be prescribed." From the reading of Sub Section (5) of Section 21, it is clear and it provides that the dealer who is liable to pay tax while consigning or delivering any taxable goods to another dealer, whether as a result of sale or otherwise shall issue to the purchaser or consignee of goods a legible challan or transfer invoice. Learned Standing Counsel therefore, submits that in the instant case admittedly neither the challan was found nor the transfer invoice was found where as the same are prescribed under Rule 41 of the VAT Rules. Rule 41 of the VAT Rule provides the challan or transfer invoice to be prepared so as referred under Sub Section 5 of Section 21. It is further clarified in Rule 41 as to how the challan or transfer invoice to be prepared and as to what wou....

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....of the value of goods....................... with intention of evade payment of tax, the penalty proceedings can be initiated and the penalty will be imposed. From the bare perusal of the penalty order, which is confirmed by the Tribunal, there is no finding recorded by any of the authorities that any of the aforesaid conditions are not fulfilled or any of the conditions are flouted. In the instant case, it is clearly established that the goods which are purchased or sold by a registered dealers against the proper tax invoice, charging the tax plus Mandi Shulk dispatched from seller place to the cold storage on the instructions of the revisionist (purchaser) and the same are duly recorded in the register of the cold storage and the number of item namely 354 bags of Chilly was found by the (SIB) Authority, at the time of inspection held on 18.12.2014 and immediately in pursuance of the first notice issued by the (SIB) Authority, at the first stage itself, the books of accounts are produced by the Revisionist on the very date fixed, then what further remains to be placed by registered dealer. In my view, therefore, the entire proceedings namely the seizure and the consequential....

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....ी गई हो अथवा माल किसी बोनाफाइड डीलर से सम्बन्धित न हो अथवा प्रपत्रों में गलत विवरण उल्लिखित हों अथवा करापवंचन के उददेश्य से 50% से अधिक का अवमूल्यन किया गया हो। प्रश्नगत मामले में माल की प्रविष्टि नियमित लेखा पुस्तकों में दर्ज à¤....