2022 (5) TMI 557

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....Assessment Year 2006-07 arising out of penalty proceedings initiated under Section 15-A (1) (O) of U.P. Trade Tax Act in which following questions of law have been framed:- "1. Whether the provisions of Section 28-A would apply to goods which are exempt under Section 4 of U.P. Trade Tax Act, 1948 for the purpose of levy and collection of entry tax? 2. Whether the provisions of Section 6 of the U.P. Tax on Entry of Goods Act, 2000 cast an obligation on an Importer to carry Form- 31 in case of goods which are exempt under clause (a) of Section 4 of the U.P. Trade Taxt Act, 1948?" Learned Senior Counsel submits that the revisionist is engaged in the business of manufacture and sale of cigarette. He submits that in two truc....

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....nder the Entry Tax Act, all provisions of Trade Tax Act are applicable. He submits that since cigarette is liable for entry tax, the intention to evade payment of tax is there in absence of Form-31, therefore, he prays for dismissal of the revision. After hearing learned counsel for the parties, the Court has perused the record. Admittedly, along with goods in question, bill, bilti and Form-35 were present and no discrepancies were found in the said documents except the fact that Form-31 could not be produced which was duly submitted later on. All entries of dispatch of goods either outside the State or in the State of U.P. have been duly made in the books of account so there cannot be said to be any intention to evade payment of tax.....

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..... In M/s. Ashish Trading Company, Agra Vs. Commissioner of Trade Tax, U.P., Lucknow (2007) 45 STR 294 this Court in considering penalty provisions of Section 15-A(1)(o) read with Section 28-A of the Act vis-a-vis 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 ....

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....ssed it cannot be inferred that the assessee/dealer attempted to evade the tax. 15. Accordingly, the inference so drawn and the finding that there was an attempt to evade tax has no legs to stand, specially 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 Depu....