TaxTMI 
TaxTMI 
2022 (3) TMI 1680
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....filed against the judgements & orders dated 04.03.2016 passed by the Commercial Tax Tribunal (Bench-I), Ghaziabad in Second Appeal Nos. 261, 259 & 260 of 2015 for the assessment year 2010-11, in which following common question of law has been framed :- "Whether on the facts & in the circumstances of the case, Commercial Tax Tribunal was legally justified in holding that the opposite party is not a dealer and not liable for payment of tax under the provisions of the U.P. Value Added Tax Act?" 3. Learned Standing Counsel submits that it is admitted case between the parties that the opposite party has taken SLR on lease in the passenger train run by the Northern Railways for transporting/carrying goods of other dealer(s)/person(s) ....
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.... primary burden has not been discharged by the Department. Therefore, levy of tax upon the opposite party cannot be justified. He further submits that as per rule 63(4) of the U.P. VAT Rules, records were summoned. On perusal of the records by the Tribunal, no material was found and therefore, the Tribunal has rightly allowed the appeal of the dealer and discharged the liability of tax. He further submits that the Tribunal has rightly interpreted the provisions of the Act and deleted the tax. In support of his submissions, he has placed reliance on the judgement of the Hon'ble Supreme Court in State of Haryana & Others Vs. Sant Lal & Another reported in (1993) 4 SCC 380 (paragraph no. 19) and prays for dismissal of the revision. 5. H....
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....y person who carries on in Uttar Pradesh (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods directly or indirectly, for cash or deferred payment or for commission, remuneration or other valuable consideration and includes, (ix) a railway container contractor, an air cargo operator, a courier service provider, who fails to disclose the name and complete address of consigner or consignee or if discloses such name or address of consigner or consignee is found bogus, forged or not verifiable, or the owner or person in-charge of a vehicle who obtained authorization for transit of goods from the officer in-charge of entry check post but failed to deliver the same to the officer in -charge of....
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....eriod of 8 years after the expiry of the assessment year to which they belong." 8. Section 2(h)(ix) of the VAT Act provides the and at the person operating as a Railway Container Contractor shall be deemed to be a dealer and is obliged to provide complete details and address of the consignor and consignee name and address, etc. Further, as per the provision of section 17 of the VAT Act, the Railway Container Contractor is required to get itself registered under the Act, failing which shall not operate its business within the State. Rule 38(7) of the VAT Rules prescribes for maintenance of record. Rule 38(7)(a) of the Rules further provides register in respect of all consignment and goods received by the Railway Container Contractor for t....
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.... tax, who fails to disclose the name and complete address of consigner or consignee or if discloses such name or address of consigner or consignee is found bogus, forged or not verifiable. 11. It is nobody's case that the goods during the disputed period/year have not been transported through SLR taken on lease by the respondents. Once this fact is admitted between the parties, the first appellate authority has remanded the matter to the assessing authority empowering to provide an opportunity to the respondents to clarify their position on facts as the assessment order was passed ex parte. The Tribunal, against the remand order, has just allowed the appeal of the respondents by just referring to the provisions of the Act. Further, t....
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....n mind that the present proceedings are regular proceedings and not reassessment proceedings for which the burden is upon the Revenue for placing materials for escapement of assessment. Since it is a regular assessment for non-payment of tax or there is not liability of tax, it is incumbent upon the dealers to produce such material/such record or other evidence to support their claim. 14. In the event of failure on the part of the dealer to produce such evidence, the assessment order cannot be set aside by merely referring the provision of the Act, which, otherwise, supports the claim of the Revenue. In other words, the language of the provision is very clear and straight. 15. The person, who is doing/operating as a Railway Container ....