- (1.) This trade tax revision, filed by the assessee, is directed against an order of the Trade Tax Tribunal, Ghaziabad, dated December 20, 2003 passed in Second Appeal No. 48 of 1998, assessment year 1996-97. Under the order impugned the Tribunal has proceeded to hold that since there had been an attempt to avoid tax while transporting the goods without valid documents, the assessee was liable for penalty under section 15A(1)(o) of the U. P. Trade Tax Act, 1948. However, in the facts of the case, the Tribunal has reduced the penalty to the tune of Rs. 15,000 only.
(2.) Challenging the order so passed, counsel for the assessee Sri Kunwar Saxena placed reliance upon the judgment of the High Court of Judicature at Allahabad in the cases of fain Sudh Vanaspati Ltd. v. State of U. P., 1983 53 STC 54, Oriental Carbon Limited v. Commissioner, Sales Tax,1985 UPTC 613and the judgment of the Supreme Court in Civil Appeal No. 1548 of 1987, decided on December 5, 1996, Commissioner of Sales Tax v. Oriental Carbon Limited,1997 10 NTN 105. It is contended that the penalty is leviable under section 15A(1)(o) for contravention of section 28A of the Act only if it is established that there has been an intention to evade tax, as would follow from the language of section 28A(6).
(3.) He submits that the High Court in the aforesaid judgments has held that merely because the required form XXXI accompanying the transaction was found to be completely blank, it by itself cannot be a ground to levy penalty under section 15A(1)(o) in absence of a finding that same had been done with the intention to evade the tax. For the purpose he has also placed reliance upon the findings which have been recorded in the assessment order.;