M/S Kothari Marketing vs Commissioner, Commercial Taxes

Ashwani Kumar Mishra, J.—This revision questions an order passed by the Tribunal, affirming imposition of penalty upon the revisionist under Section 48(5) of U.P. Value Added Tax Act. The order records that at the time of seizer, the assessee had not produced tax invoice, and as such an inference has been drawn that goods were not shown in the accounts register. In view of such discussion and observation, the order passed by the authorities imposing penalty has been upheld.

Learned counsel for the revisionist submits that in order to attract provisions contained under Section 48(5) of the Act, twin conditions are required to be examined by the Tribunal i.e. (i) whether books of account have not been property maintained, and (ii) whether there was any intention on part of the assessee to evade payment of tax.

It is contended that the Tribunal has not adverted to these two crucial aspects of the matter, and in the absence thereof, the order itself cannot be sustained.

Learned Standing Counsel although has attempted to justify the order, but has not been able to demonstrate from the order of the Tribunal that any finding on relevant aspects is returned in the order of the Tribunal.

Having considered the submissions aforesaid, this Court finds that necessary ingredients to attract imposition of penalty in terms of Section 48(5) of the Act, have not been shown to exist in the order, inasmuch as there is no finding that there is any intention to evade payment of tax, nor the Tribunal has examined as to whether proper books for accounts etc. were maintained. It would be relevant to notice at this stage that in response to notice issued, the revisionist has substantiated that tax invoice had been issued and it was due to mistake that such documents though in existence, could not be produced at the time when the goods were seized. According to assessee, this was an inadvertent error. The tribunal before proceeding to affirm imposition to penalty, was expected to examine whether there was any intention to evade tax, and that account books were not properly maintained. Since this aspect has not been examined by Tribunal, as such the order passed by the Tribunal falls short of requirement of law and as such, cannot be sustained. Matter is remitted back to the Tribunal to examine it, afresh, in accordance with law.