AI Drafter 
TaxTMI 
TaxTMI 
2019 (7) TMI 1458
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.... of the dates 07.12.2015 to 27.12.2015, issued by M/s. A.N. Enterprises another registered dealer of Kanpur. The enquiries made by the Special Investigation Branch ('SIB' in short) of the revenue department revealed that the registration of M/s. A.N. Enterprises at Kanpur had been cancelled with effect from 01.01.2016. In such circumstances, the goods found packed in 18 bundles were seized and later released upon deposit of security. By notice dated 03.06.2016, penalty under Section 48 (5) was proposed to be imposed, to which the assessee replied, and by order dated 17.06.2016, the explanation furnished by the assessee was rejected and a penalty of Rs. 2,25,000/- was imposed on the reasoning that the disclosed selling dealer, M/s. A.N. Enterprises was not a bona fide dealer; the TIN of the said M/s. A.N. Enterprises had been cancelled with effect from 01.01.2016 and; selling dealer had not filed its regular returns of turnover. 3. The assessee carried the matter in appeal before the first appeal authority. It also appears that the assessee produced the tax invoices against which it has made purchases from M/s. A.N. Enterprises, its purchase ledger and further claimed tha....
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.... survey authorities, the assessing authority as also the first appeal authority the tax invoices against which it had made purchases of goods from M/s. A.N. Enterprises. Moreover, the assessee had produced its purchase ledger and also established that it had made payments to the said selling dealer through banking channels. These facts have been duly appreciated by the first appeal authority and thereafter by a reasoned order, the penalty had been deleted. This reasoning of the first appeal authority has neither been considered nor been found to be erroneous by the Tribunal in the impugned order. The Tribunal has, in fact, culled out a new case beyond the pleadings and grounds of appeal raised by the revenue and on such new case, it has set aside the order of the first appeal authority and remanded the matter to the assessing authority with specific directions even as to the conduct of fresh enquiry. Those directions are wholly biased against the assessee as may only allow the conclusion of guilt of the assessee to arise. In this regard, reliance has been placed on decisions of this Court in C.C.T. Vs. Sanjay Steel Suppliers, 2015 UPTC 917; M/s. United Wheels Pvt. Ltd., Ghaziaba....
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.... to be imposed. Only a fresh enquiry has been directed in the same manner which does not fall foul with any particular law laid down by this Court. 12. Having heard learned counsel for the parties and having perused the record, in the first place, it is difficult to accept the contention advanced by learned counsel for the assessee that the Tribunal has culled out a new case. The principle that prevents the Tribunal from making out a new case while deciding an appeal before it, rests on the norm that a litigation must attain finality as it proceeds. 13. That principle has no application in the facts of the present case, inasmuch as the assessing authority had imposed a penalty by making observations that the seller M/s. A.N. Enterprises was not a bona fide dealer; its TIN/Registration had been cancelled on 01.01.2016 and; no returns of turnover had been submitted by the said dealer. Thus, the reasoning of the assessing authority appears to be that the goods had never been sold by M/s. A.N. Enterprises to the assessee. This reasoning stems from the three facts noted above. When the matter was carried in appeal, it does appear that in that appeal, the assessee produced before t....
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....se such as this where merely an incomplete enquiry has been made, may often stifle the parties to their prejudice in the proceedings on remand. Therefore, it should have been left open to the first appeal authority to pass an order upon making such complete enquiry on the basis of plea and evidence that may be brought before it by the assessee as also the revenue. 15. The submission advanced by learned counsel for the assessee that a new case has been set up, is not correct. The decision in the case of M/s. United Wheels Pvt. Ltd., Ghaziabad (supra) was a case where penalty has originally been imposed under Section 4-B(5) of the U.P. Trade Tax Act, 1948, that was set aside. Upon the matter being carried to the Tribunal by the revenue, the Tribunal set aside the order of the first appeal authority and remanded the matter with a direction to consider imposition of penalty under Section 4-B(6) of the said Act. Clearly, the contravention for which penalty may be imposed under Section 4-B(6) of the Act is materially different from that for which penalty may be imposed under Section 4- B(5) of the said Act. Under Section 4-B(5), penalty is imposable on misuse of raw material purchased....