COMMISSIONER OF SALES TAX Vs. SPINTEX TRADING CO

JUDGEMENT

(1.) Challenging the interpretation as put by the Tribunal on Section 15-A(l)(qq), before amendment by U.P. Act No. 31 of 1995, the present revision has been filed and is directed against the order of the Tribunal passed in Second Appeal No. 247 of 1991 for the assessment year 1981-82. The two members of the Tribunal though reached to the same conclusion but they have delivered separate orders and for different reasoning, not agreeing with each other.

(2.) The facts of the case are not much in dispute. The factual background of the case is that the dealer-opposite party, a registered dealer, both under the U.P. and Central Sales Tax Act and it deals in mill stores, cotton tapes, etc. It purchased the goods from outside the State of U.P. and sold the same to the various persons within the State of U.P. by transfer of documents of title without taking the delivery of the goods. The assessing authority on scrutiny of the account books found that the dealer-opposite party has realised sales tax at the rate of 4 per cent. But the dealer did not admit any tax liability under the Central Sales Tax Act. In the assessment proceed ings the dealer claimed and was granted exemption from Central sales tax on the basis of the form C and form El furnished by it. Consequently the penalty proceedings under Section 15-A(1)(qq) of the U.P. Sales Tax Act were initiated for levy of the penalty as the dealer has realised 4 per cent as sales tax, according to the depart ment as Central sales tax which was not legally payable by the purchasers. A sum of Rs. 1,70,000 was levied as penalty by the order dated 15th of March, 1990 which was confirmed by the appellate authority. The Tribunal has set aside the penalty order, by the order under revision.

(3.) Heard the counsel for the parties and perused the record. The learned Standing Counsel submitted that in the facts of the present case Section 15-A(1)(qq) was fully applicable and the reliance placed by one member of the Tribunal upon the judgment of the Supreme Court in the case of Commissioner of Sales Tax v. Moot Chand Shyam Lal AIR1988 SC 1860 , 1988 (15 )DRJ236 , JT1988 (3 )SC 337 , 1988 (2 )SCALE602 , (1988 )4 SCC486 , [1988 ]Supp(1 )SCR750 , [1988 ]71 STC226 (SC ), 1988 (2 )UJ520 (SC ) is misplaced one. The another member has set aside the penalty order on the ground that the penal provisions of the U.P. Sales Tax Act could not be invoked in respect of Central sales and only penal provisions of the Central Sales Tax Act could have been invoked. It was submitted by the learned Standing Counsel that the different reasonings given by the each member of the Tribunal are not sustainable in law. In contra Shri Bharatji Agrawal, the Senior Advocate, submitted that the controversy involved in the present case is fully covered by the aforesaid judgment of the Supreme Court given in the case of Commissioner of Sales Tax v. Mool Chand Shyam Lal AIR1988 SC 1860 , 1988 (15 )DRJ236 , JT1988 (3 )SC 337 , 1988 (2 )SCALE602 , (1988 )4 SCC486 , [1988 ]Supp(1 )SCR750 , [1988 ]71 STC226 (SC ), 1988 (2 )UJ520 (SC ).