IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. VAT Appeal No.46 of 2010 (O&M) Date of decision: 24.8.2010 M/s Nahar Industrial Enterprises Limited. -----Appellant. Vs. The State of Punjab & another. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Sandeep Goyal, Advocate for the appellant. --- ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the assessee- dealer under Section 68 of the Punjab Value Added Tax Act, 2005 (for short, “the Act”) against order dated 28.12.2009 passed by the Tribunal in Appeal (VAT) No.587 of 2009, proposing to raise following substantial question of law:- “1. Whether on the facts and in the circumstances of the case, the dealer had made any attempt to evade the tax and is thus liable for imposition of penalty under section 51 (7) (b) of the Punjab Act? 2. Whether the serial No. accompanying challan is hand written can be the basis for imposition of penalty in absence of any other evidence? 3. Whether on the facts and circumstances of the case, the order passed by the Tribunal is non VAT Appeal No.46 of 2010 speaking and thus not in conformity with the principles of natural justice? 4. Whether on the facts and circumstances of the case, the learned Tribunal is justified in upholding the penalty imposed under Section 51 on the ground of violation of rule 57, even though there is specific provision under Section 57 to deal with such like situation and there is no finding that there was any evasion of tax which would attract penalty under Section 51? 2. On 18.7.2006, vehicle transporting goods at the instance of the appellant was checked and finding deficiencies, proceedings were initiated under Section 51 of the Act. Finally, the competent authority imposed penalty of Rs.1,80,000/- which was upheld on appeal by the appellate authority and also by the Tribunal. 3. Learned counsel for the appellant submits that the goods were voluntarily reported at Information Collection Centre and were not meant for sale but were being sent for repair and this plea though raised, has not been gone into. The penalty under Section 51 of the Act could be justified only if there was attempt at evasion of tax, which could not be inferred merely from deficiency in documents without considering the view point of the dealer. 4. We have perused the impugned order and find that there is no clear finding that there was attempt at evasion of tax which was a condition precedent for levy of penalty. Accordingly, 2 VAT Appeal No.46 of 2010 we answer the questions of law that without recording finding of attempt at evasion of tax, levy of penalty is not called for. This being a matter of record, we have not considered it necessary to issue notice. 5. Accordingly, we allow this appeal and set aside the impugned order of the Tribunal and remand the matter to the Tribunal for a fresh decision in accordance with law. 6. The appellant may appear before the Tribunal on 22.12.2010 for further proceedings. (ADARSH KUMAR GOEL) JUDGE August 24, 2010 ( AJAY KUMAR MITTAL ) ashwani JUDGE 3