SUPER TRADERS Vs. ADDITIONAL COMMISSIONER OF COMMERCIAL TAX

JUDGEMENT

(1.) Calling in question the orders passed by the assessing authority and the revisional authorities in the matter of assessment of VAT to be paid by the petitioners for the period 2004-05, this petition has been filed. Challenge is made to the legality of the penalty imposed under section 69(1) and as the amount of tax has already been paid, it is said that challenge is only made to the penalty imposed on VAT.

(2.) The petitioner is a registered dealer with the Commercial Tax Department and carrying on the business of sale and purchase of cement at Bhopal manufactured by M/s. Diamond Cements, Damon. An ex parte order of assessment was passed by respondent No. 2 for the assessment year 2004-05. This assessment order was set aside in appeal and the matter was remanded back. The assessment was done and certain amount with regard to transportation or the fright amount was disallowed so also certain amount with regard to payment through credit note was disallowed. Tax was assessed on these amount and on the ground of concealment, penalty is imposed.

(3.) As far as tax collected is concerned, the same has been paid and the only challenge is made to imposition of penalty on both the counts, i.e., on amount of freight and transportation charges so also on account of credit note. As far as concealment of the amount with regard to freight charges are concerned, learned counsel invites our attention to the orders of assessment passed and points out that while considering the question in the backdrop of section 9B of the Commercial Tax Act, the learned assessing officer in his order annexure P/1 dated November 24, 2008 has found that certain amount is claimed as the amount of price for purchase of cement from M/s. Diamond Cements. It is found that this is not the entire purchase amount, this includes certain amount paid towards transportation and freight charges and as these amounts cannot be deducted, penalty is imposed on this amount on the ground of concealment. It is the case of the petitioner that the amount is disclosed in the return, there is no concealment and therefore, in the light of law laid down by the Supreme Court in the case of Commissioner of Income-tax v. Reliance Petroproducts Pvt. Ltd., 2010 322 ITR 158 , the amount of penalty cannot be imposed on the ground of concealment of freight charges. It is said that it is nothing but an amount claimed as purchase price which has been disallowed and therefore, it does not fall within the category of concealment.