J P ENTERPRISES Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This writ petition under article 226 of the Constitution of India is directed against an order dated July 12, 1988, passed by the Sales Tax Tribunal, Agra, whereby it allowed the Commissioner's appeal and restored the order passed by the Sales Tax Officer levying a penalty of Rs. 16,872 on the petitioner. The petitioner also challenges another order of the Tribunal dated August 8, 1988, by which the Tribunal dismissed the petitioner's application under section 22 of the U. P. Sales Tax, 1948, for the rectification of the aforesaid order. I have heard the learned counsel for the petitioner and the learned Standing Counsel. The petitioner's case is that he purchased 100 quintals of mustard oil for a sum of Rs. 1,40,000 from M/s. Mahalaxmi Oil Mills, Dholpur (Rajasthan), which was being transported through tanker No. VPP 1989 from Dholpur to Patna. The petitioner carries on its business at Patna. The tanker was accompanied by challan No. 59 dated November 28, 1983, issued by the seller M/s. Mahalaxmi Oil Mills, Dholpur. The tanker also carried a road permit issued by the Bihar Transport Authority for a trip to Dholpur and back. The tanker was intercepted at Agra when it was on its way to Patna and it was released on furnishing of security. Thus, the Sales Tax Officer, SIB (I), Agra, issued a notice under section 13-A (4) of the Act proposing to levy penalty on the ground that transit pass in form No. 34 had not been obtained. The petitioner submitted a reply stating that the tanker reached Agra through Fatehbad and there was no check-post on the way from which a transit pass could be obtained. By an order dated August 29, 1984, the aforesaid Sales Tax Officer, respondent No. 3, imposed penalty under section 13-A (4) of the Act on the ground that the petitioner purchased the goods within the State of Uttar Pradesh and avoided tax. The petitioner filed an appeal before the Assistant Commissioner (Judicial), Sales Tax, which was allowed. The Commissioner of Sales Tax then filed an appeal before the Sales Tax Tribunal, which set aside the order of the first appellate authority and restored the order passed by the respondent No. 3. In the present petition, it is contended that the appeal filed on behalf of the Commissioner of Sales Tax before the Tribunal was signed by the Deputy Commissioner (Executive), Sales Tax, Agra, who was not a competent person to file the said appeal as the petitioner was not a dealer within the State of Uttar Pradesh. The Petitioner further contends that under section 13-A (4) of the Act, penalty can be imposed only if the goods are omitted from being shown in the accounts of the dealer and that no such finding has been recorded by the respondent No. 3. It is further stated that in case the goods had been purchased from Uttar Pradesh then the penalty should have been levied on the selling dealer. According to the petitioner, there was no material to prove that the goods were purchased within the State of Uttar Pradesh. The petitioner further contends that the notice having been issued with the allegation that no transit pass was obtained, the penalty could not be levied under section 13-A (4) of the Act. The respondents have not filed any counter-affidavit. The copy of the show cause notice issued by the Sales Tax Officer to the petitioner is at page 20 of the paper book which states that the petitioner was found carrying a tanker of mustard oil valuing Rs. 1,40,650 without a transit pass from Dholpur (Rajasthan ). The notice further mentions that this conduct of the petitioner is punishable under section 13-A (4) of the Act. Thus, this notice is contradictory in terms. The narration of facts, i. e. , the assertion, that the goods were being carried without a transit pass, makes the conduct punishable under section 15-A (1) (q) of the Act and not under section 13-A (4 ). Under section 13-A (4) of the Act, penalty can be levied if the concerned authority is satisfied that the said goods were omitted from being shown in the accounts, registers and other documents. There is no finding either by the Sales Tax Officer concerned or by the Tribunal that the goods in question were omitted from being shown in the accounts of the petitioner or those of the other seller, M/s. Mahalaxmi Oil Mills, Dholpur. Admittedly the driver of the tanker had with him the challan issued by the said selling dealer showing the name of the petitioner as purchaser, the quantity of the goods, their price, etc. , etc. The copy of the said document is at page 16 of the paper book which shows that even the telephone numbers of the selling dealer were mentioned. The Sales Tax Officer, SIB, surprisingly did not make any attempt whatsoever to contact the dealer purporting to have sold the goods to the petitioner even on telephone and there is no denial by the selling dealer of the transaction nor did the driver of the tanker or any other person make a statement that the goods loaded in the tanker originated within the State of Uttar Pradesh itself. This Sales Tax Officer indulged in day-dreaming by assuming that the goods were purchased from some dealer in U. P. by mentioning inconsequential circumstances like the alleged omission on the part of the driver to possess a receipt for payment of toll tax and absence of an endorsement on the road permit by the transport authorities of Rajasthan. If the Sales Tax Officer doubted the genuineness of the challan, it was his bounded duty to contact the selling dealer and it was only if the selling dealer could not be traced or if the selling dealer denied the transaction or there was other cogent evidence that a presumption of the kind mentioned above could be possible. As already stated, the respondents have not even filed a counter-affidavit to deny the allegations of the petitioner that the goods originated from Dholpur, having been sold to the petitioner by M/s. Mahalaxmi Oil Mills. There is no finding that either the purchaser or the seller was not a bona fide dealer or that the goods were not recorded in their respective accounts. No penalty under section 13-A (4) of the Act could, therefore, be levied. No penalty under section 15-A (1) (q) of the Act has been levied nor could it be probably levied because there is no denial of the petitioner's allegation that there was not check-post on the way. In view of the aforesaid discussion, it is clear that no case whatsoever for the levy of penalty was made out and the learned Assistant Commissioner (Judicial), Sales Tax, had rightly cancelled the penalty. The Tribunal's order, therefore, cannot be sustained. In the result, the writ petition is allowed and the Tribunal's order dated July 12, 1988, is hereby set aside and the Commissioner's appeal shall be deemed to have been dismissed. The petitioner will get its costs of this writ petition from the respondents which I assessed at Rs. 1,500. Writ petition allowed. .