EXECUTIVE ENGINEER Vs. THE COMMISSIONER

JUDGEMENT

(1.) Revisionist before this Court is State Govt. Undertaking and was undertaking certain works for a government scheme. Various goods for the purposes of construction were brought from outside the State by using Form 31. The construction agency i.e. M/s Nagarjun Construction Company utilized the form for bringing such construction materials within the State. At the time of entry of such goods within the State, the authorities seized the commodity on the ground that Form 31 was not issued in the name of the revisionist, but was being utilized by the construction agency. An order of penalty was passed under Section 15-A(1)(o) of the U.P. Trade Tax Act. The appeal filed by the assessee has been rejected and such order has been affirmed by the Tribunal. Thus aggrieved, the revisionist is before this Court in the present revision.

(2.) Learned counsel for the revisionist submits that a negative burden is imposed upon the assessee inasmuch as it has been asked to produce materials to show that form has not been misused. It is further stated that the revisionist is a registered dealer and appropriate orders at the stage of assessment could have been passed and the penalty proceedings drawn are wholly without an authority of law. Reliance is placed upon a decision of this Court in M/s Western India Enterprises Ltd., Delhi v. The Commissioner of Sales Tax, U.P. Lucknow [2003 NTN (23) 564] to contend that if Form 31 is not in the name of owner of goods, levy of penalty is not automatic.

(3.) Learned Standing Counsel defends the order of the Tribunal for the reasons assigned therein.