TaxTMI 
TaxTMI 
2022 (9) TMI 848
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....ase, questions 1, 2 and 4 would be relevant. Consequently, the Court proceeds to frame the following substantial questions of law:- (1) Whether the Tribunal having recorded a finding in paragraphs 7 and 8 of the judgment that the department has failed to establish any means rea on the part of the applicant, which is the condition precedent for imposition of penalty in view of the decision of the Hon'ble Supreme Court in the case of Hari Oil & General Mills Vs. Commissioner of Sales Tax, U.P., reported in 2010 (Vol.44) NTN, page 69, no penalty can be legally imposed? (2) Whether in view of the findings recorded by the Tribunal that there was no malafide intention on the part of the applicant by using 'C' forms for purchase of goods and the applicant having acted bonafidely in purchasing the goods against 'C' forms, hence no penalty can be legally imposed, as held by this Hon'ble Court in the case of Ajudhia Distillery Vs. Commissioner of Trade Tax, U.P., reported in 2013 (Vol.51) NTN, page 83, accordingly no penalty can be legally imposed as held by the Tribunal. Hence, there was no justification to remand the case to the first appellate aut....
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....th at the time of registration. 10. The revisionist had applied for registration under Central Sales Tax Act in prescribed form 'A'. In this application, the revisionist had mentioned in Column S.No.16(d) as under - 11. The revisionist has got installed Transmission Lines through various contractors under Works Contract, which is essential part of distribution of power from the point of generation of power (Tala Hydro-electric Project- Bhutan) to the various points at Siliguri, Purnea, Muzzafarpur, Gorakhpur, Lucknow, Bareilly and Mandola. For the purpose of distribution of power, transmission line from Siliguri in West Bengal to Mandola in U.P. was also established by revisionist. This was set up on Build, Own, Operate and Transfer (BOOT) basis and an agreement had been executed between Power Grid Corporation of India Limited and the revisionist for transmission of power from Tala Hydro Project & surplus Power of the North-Eastern states to northern region. 12. The Assessing Officer after taking into consideration and understanding the nature of business of revisionist, on being satisfied, granted Registration No.LW-0207717 w.e.f. 24.02.2004 under U.P. Trade Tax A....
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.....12.2012, a copy of which is Annexure-11 to the application for interim relief, partly allowed the first appeal and remanded back the matter to the assessing authority. 18. Still being aggrieved, the revisionist filed a second appeal under Section 57 of the U.P. VAT Act, 1948 which has been partly allowed vide order dated 18.07.2013, a copy of which is Annexure-12 to the application for interim relief, and the matter has been remanded to the appellate court. 19. Being aggrieved, instant revision has been filed on the questions of law, as have already been indicated above. 20. Learned Senior Advocate argues that a penalty under Section 10-A of the Act, 1956 as per the facts of the instant revision can only be imposed where a person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10. Clause (b), (c) and (d) pertain to falsely representing and purchasing any class of goods that goods of such class are covered by the certificate of registration; not being a registered dealer but falsely representing when purchasing goods in the course of inter- State trade or commerce that he is a registered dealer; or after purchasing any goods....
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....rds, what is apparent is that on 28.06.2012 a penalty has been imposed upon the revisionist by the competent authority under Section 10 of the Act, 1956. Admittedly, Section 10-A of the Act, 1956 was invoked upon the Assessing Authority finding violation of Section 10(b)(c) or (d) of the Act, 1956. Incidentally, clause (b), (c) and (d) pertain to falsely representing and purchasing any class of goods that goods of such class are covered by the certificate of registration; not being a registered dealer but falsely representing when purchasing goods in the course of inter-State trade or commerce that he is a registered dealer; or after purchasing any goods for any of the purposes specified in clause (b) or clause (c) or clause (d)] of sub-section (3) or sub-section (6)] of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose. Admittedly, there is also a specific finding by the second appellate authority in the order dated 18.07.2013 of their being bonafide belief on the part of the revisionist and there being no ill intention on the part of the revisionist and no such ill intention having been proved by the department. Once Section 10-A of the Act....