2021 (11) TMI 68

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....Second Appeal No. 238 of 2006 (M/s Colgate Palmolive India Ltd. Vs. Commissioner Trade Tax, Kanpur) for the assessment year 2004-2005 arising out of penalty proceedings initiated under Section 15- A(1)(o) of U.P. Trade Tax Act, 1948 (hereinafter referred to as "Act, 1948") in which following questions of law have been raised : "(1) Whether, the penalty of Rs. 4.00 lacs imposed and sustained against the applicant is wholly illegal and contrary to the provisions of Section 15-A(1)(o) of the Act, 1948 ? (2) Whether, the penalty imposed on the applicant under Section 15-A(1)(o) of the Act, 1948 is wholly perverse, arbitrary and excessive ?" 3. Sri Aditya Pandey, counsel for the revisionist submits that the revisionist is a ....

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....d demanded the security for the release of the goods of Rs. 3 lacs. The security amount was reduced to Rs. 1.5 lacs by order dated 10.02.2005. Thereafter, the penalty proceedings were initiated against the revisionist under Section 15-A(1)(o) of the Act, 1948 and by order dated 4.8.2005, the penalty of Rs. 4 lacs was imposed. Against the said order, the revisionist preferred a first appeal and by order dated 21.06.2006, the same was confirmed and the same was affirmed by the impugned tribunal order. 4. Sri Aditya Pandey, counsel for the revisionist submits that action to impose penalty is not justified as the goods in question were duly accompanying all relevant documents as mentioned in Section 28-A of the Act, 1948. Moreover, the same ....

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....926 cartoons of colgate tooth powder were also found. On coming to the discrepancy found, a show cause notice was issued. On the receipt of the show cause notice, a reply was submitted along with the documents such as Invoice, Form 31, Transport G.R. and Way Bill but the same was rejected as an after thought and the seizure order was passed and demanded security of Rs. 3 lacs for release of the goods that was modified by the order dated 10.02.2005 and was reduced to Rs. 1.5 lacs. 8. Thereafter the penalty proceedings under Section 15-A(1)(o) of the Act, 1948 was initiated against the revisionist which was confirmed upto the tribunal. The penalty proceedings have been initiated only on the ground that the revisionist have contravented the....

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.... non obtaining the declaration in Form - 31, held that levy of penalty merely because no declaration form was produced cannot be sustained. 11. In ITI Limited Vs. The Commissioner of Trade Tax, U.P. Lucknow 2010 UPTC 643 the Court has laid down that where Form - 31 was not initially produced but was subsequently furnished before the seizure the imposition of penalty under Section 15-A(1) (o) of the Act is not justified. 12. A similar view was expressed in another decision of this Court reported in 2010 UPTC 503 M/s Interarch Building Produce Ltd. Vs. The Commissioner of Trade Tax. In this case the Form - 31 was produced by assessee/dealer before passing seizure order and the Court held, in the circumstances, that intention....

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....ally in the light of above referred various decisions. 16. In view of aforesaid facts and circumstances, the question raised in this revision as to whether the levy of penalty under Section 15-A(1)(o) was justified, is answered in favour of the assessee/dealer and against the revenue and it is held that as there was no attempt to evade payment of tax, the penalty could not have been imposed. 17. Accordingly, the revision is allowed. The impugned orders dated 3.3.2003 passed by the tribunal, 21.9.2002 passed by Deputy Commissioner (Appeals) and 22.3.2002 passed by Assistant Commissioner (Assessment) are set aside." 10. The case in hand, revisionist along with reply to show cause notice has filed the documents but no weig....