IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL [Chapter VIII, Rule 32(2) (b)] Description of case Date of decision: 13.02.2008 Trade Tax Revision No. 226 of 2002 (Old No. 290/1999) A.F.R. (Approved for Reporting) Not Approved for Reporting (Initial of Judge) Date 13.02.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Trade Tax Revision No. 226 of 2002 M/s Photo Tech Pvt. Ltd. Kashipur, Nainital Now Udham Singh Nagar Through Sri R.P. Singhal Manager, Sales Tax, Jindal Photo films Ltd, Transferee Company 56/2, Hanuman Road, New Delhi ……….Applicant. Versus The Commissioner of Trade Tax, U.P. Lucknow. ………..Respondent. Shri S.K. Posti, learned counsel for the revisionist. Shri Lalit Sharma, learned counsel for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:-Hon’ble Prafulla C. Pant, J. This revision, preferred under Section 11 (2) of U.P. Trade Tax Act, 1948, is directed against the judgment and order dated 25.02.1999, passed by Trade Tax Tribunal, Moradabad, Camp-Haldwani, whereby the imposition of penalty under Section 15-A (1) (o) of the Act, imposed by the Assessing Authority, is restored and the order dated 02.07.1993, passed by First Appellate Authority, is set aside. 2) Heard learned counsel for the parties. 3. Brief facts of the case are that on 14.09.1990, a truck bearing registration No. DDS 5786 was intercepted in Katkad Bridge, Ghaziabad. Photo-films were being carried in said truck belonging to assessee to be delivered at Kanpur. Under the law, all the goods, which were being transported from Ghaziabad had to bear Orginating Certificate (for short O.C.) stamp to show that the goods are not being imported from outside the State. Since the papers with the truck relating to items loaded in it showed that the goods are being transported from Kashipur to Kanpur via Ghaziabad, this raised suspicion in the mind of Sales Tax Officer, at Katkad Bridge who seized the goods under Section 13A of U.P. Trade Tax Act, 1948. The information appears to have been sent to the Assessing Officer at Kashipur where the assessee has its manufacturing unit. The Assessing Officer, issued notice under Section 15-A (1) (o) of the aforesaid Act, seeking reply as to why the penalty be not imposed on the assessee. The assessee submitted his reply, explaining that the assessee company had to send its found iron racks of its Brij Vihar Godown at Ghaziabad in the truck. The Assessee further took the plea that non-stamping of O.C. on the challan was simply a technical error and as such, there was no evasion or intention to evade the tax on the part of the assessee. The Assessing Officer after considering the reply and hearing the parties, rejected the explanation of the Assessee and imposed penalty or Rs. 72,880/- (i.e. 40% of the value of the goods of Rs. 1,82,200/-). Aggrieved by said order dated 14.09.1992, passed by the Assistant Commissioner, Trade Tax, Kashipur, First Appeal No. 230 of 1992, was filed by the assessee before Deputy Commissioner (Appeals), Bareilly. Said authority, after hearing the parties, accepted the explanation of the assessee and set aside the order, passed by the Assessing Officer, vide its order dated 02.07.1993. The State filed Second Appeal against said order of the First Appellate Authority, which was numbered as Second Appeal No. 238 of 1993, before Trade Tax Tribunal. The tribunal after hearing the parties, set aside the order, passed by First Appellant Authority and restored the order imposing the penalty by the Assessing Officer. Hence this revision was filed by assessee before Allahabad High Court on 01.07.1999, from where it has been received by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 4. The question of law before this Court is whether the tribunal erred in law in setting aside the order passed by the First Appellate Court and was there no intention on the part of the assessee to evade the tax and as such, the imposition of the penalty against him is illegal ? 5. Having heard learned counsel for the parties and after going through the impugned orders and other papers on record, following facts emerge out in this case:- 1. The truck intercepted at Ghaziabad, was destined to Kanpur with the goods of the assessee, who has its unit at Kashipur. Said route is an abnormal and longer by 172 Kms. 2. The papers relating to goods in the truck did not bear seal of Originating Certificate, indicating that the goods were being transported within the State and not from outside the State. 3. On enquiry, the Assessing Officer found that the papers produced by the assessee relating to transport of goods from Kashipur were suspicious as there was difference in the original ‘builty’ and the carbon copy, produced to the authorities, relating to transport of goods. 4. The carbon copy, which was filed by the truck association to whom the vehicle belonged, showed that the goods were sent from Kashipur to Kanpur, while the documents, which were with the truck shows that the goods were being from Kashipur to Ghaziabad and Ghaziabad to Kanpur. 5. The driver of the truck made a statement that the goods were loaded from the depot at Ghaziabad. 6. The above five points persuaded the tribunal to agree with the Assessing Officer as to its finding of fact that the assessee had an intention to evade tax and as such, the penalty was rightly imposed. This Court in its revisional jurisdiction, under Section 11 of the U.P. Trade Tax Act, 1948, is not expected to interfere with the finding of fact unless the same is perverse. The points mentioned above, appear to be based on the record. And as such, cannot be said to be perverse. In the circumstances enumerated above, we are not inclined to interfere with the above finding of fact recorded by the tribunal. 7. Learned counsel for the revisionist, drew attention of this Court to the principle of law laid down in Trade Tax Revision No. 133 of 2001, M/s Polyplex Corporation Limited Vs. Commissioner of Trade Tax, Dehradun, decided by this Court on 23.09.2003, wherein it has been held that where there is no intention to evade the tax, the imposition of penalty under Section 15-A (1) (o) of the Act, cannot be sustained. We do agree with the principle that imposition of penalty under Section 15-A (1) (o) can be justified only where there is intention to evade the tax. But the aforesaid case law does not held the revisionist in the present case as there are sufficient reasons on the record in the present case to believe that the assessee had an intention to evade the tax, as pointed out above. In the case of Commissioner Sales Tax, U.P. Vs. Oriental Carbon Limited 1997, N.T.N. Pg. 105, there was finding of fact recorded by the tribunal itself that there was no intention of evasion of tax on the part of the assessee. In the case of M/s S.B. Industries Vs. Commissioner of Income Tax 2007, UPTC Pg. 386, the Allahabad High Court, held that the intention to evade tax cannot be gathered only on the ground that declaration in form 31 was not shown at the time of interception but produced later. In the present case, the facts are different and the aforesaid case laws are of no help to the revisionist. 8. Lastly, it is argued on behalf of the revisionist that since the revisionist was a new unit and exempted under Section 4A of U.P. Trade Tax Act, 1948, as such it had no intention to evade the tax. Had there been no statement of the driver that the goods were loaded at Ghaziabad, we would have accepted the contention, advanced on behalf of the revisionist. Since the exemption under Section 4A of the Act was available to a manufacturing unit, a person who is transporting the goods from Ghaziabad to Kanpur directly without getting it manufactured at its unit, is not exempted under said Section of the Act. 7. For the reasons, as discussed above, we find no error of law committed by the tribunal, and therefore, the revision is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt.13.02.2008 Sweta