- (1.) These two revisions under section 11 of the U.P. Trade Tax Act (hereinafter referred to as the Act) are directed against the order of the Tribunal dated 20th September, 2003 both relating to the assessment year, 1988-89. Revision no.41 (defective) of 2004 relates to assessment proceeding and revision no. 42 (defective) of 2004 relates to penalty proceeding under section 15-A (1) (q) of the Act.
(2.) Brief facts of the case are that the applicant is a transporter. Vehicle No.DL-1G/2664 belongs to the applicant. It is alleged that the vehicle was driven by the driver, Sri Kamlesh Yadav, son of Chennai Ram Yadav, who was the employee of the applicant. In the vehicle 222 cartoons of parchun goods valuing Rs.3,67,982/- , which were meant for transport from Delhi to Gauhati. The driver of the vehicle obtained transit pass no.2095 dated 21.04.1998 at the entry T.P. Nagar check post in respect of 222 cartons of parchun goods, which was to be surrendered at Tankuhiraj, district Deoria by 30.04.1998 under section 28-B of the Act. The case of the applicant is that when the goods could not reach Gauhati by 26.04.1998 and the applicant had a doubt about the misappropriation of the goods by the driver of the vehicle on 26.04.1998, a first information report was lodged with the Station Officer Sahibabad, district Ghaziabad. The said F.I.R. was lodged against the driver of the vehicle, Sri Kamlesh Yadav, son of Sri Chennai Ram Yadav, resident of village and post Chatai Kala, Tehsil Shahganj, district Jaunpur and his assistant Hardeo Singh, son of Arvind Kumar. Said F.I.R. was registered by the police under section 406 I.P.C. Application and F.I.R are annexed as annexure-2 to the revision. However, on 24.04.1998 the chaukidar of the village Kurari, district Hamirpur found the aforesaid truck standing with fire. He reported to the police station Hamirpur who had sent information to the police station Ghaziabad. Applicant also informed to the police station Sahibabad about the vehicle being standing at Hamirpur. It appears that on 17.06.1998 report was given by the police that on 01.06.1998 vehicle no.DL-1G/2664 was found in the area of police station Kurari, district Hamirpur, in which goods relating to the case was not found and the vehicle was found burnt from the front side. In pursuance of the report, charge sheet has also been filed on 04.03.1998 under section 406 I.P.C., which is annexure-5 to the revision. The vehicle was insured and, therefore, on the information being given to the Insurance Company, survey was conducted by Sri S.K.Gupta, Surveyor and Loss Accessor. Report of the surveyor is annexed as annexure-3 to the revision. A perusal of the report shows that it only reported the loss of vehicle and there is no reference to the goods. On the information being received that alleged Form-34 No.2095 dated 21.04.1998 was not surrendered at the exit check post. Proceeding under section 7 (4) and section 15-A (1) (q) of the Act were initiated and after consideration of the reply of the applicant, a sum of RS.54,375/- was imposed towards tax vide order under section 7(4) a sum of Rs.2,00,000/- had been imposed under section 15-A (1) (q) of the Act towards penalty. Applicant filed two appeals before the Deputy Commissioner, Trade Tax, Ghaziabd. First appellate authority allowed both the appeals in part and reduced the amount of tax to Rs.43,500/-and amount of penalty to Rs.60,000/-Being aggrieved by the order of first appellate authority, applicant as well as Commissioner of Trade Tax filed appeals before the Trade Tax Tribunal, Ghaziabad, who vide order dated 20.09.2003 rejected all the four appeals.
(3.) Heard learned counsel fro the parties. Learned Counsel for the applicant submitted that the facts and circumstances shows that the goods were misappropriated by the driver of the vehicle and no case had been made by the revenue that there was any involvement of the applicant in disposing of the goods and, therefore, for the criminal act of the driver, the applicant should not be subjected to liability of tax under the Act and should also not be subjected to penalty. Learned Standing Counsel submitted that admittedly, the vehicle belongs to the applicant and the driver of the vehicle was the employee of the applicant and, therefore, for the act of the driver, the applicant is liable to tax. He submitted that the order of Tribunal both in respect of the assessment and the penalty is liable to be upheld. Learned Counsel for the applicant submitted that there is no finding that the goods have been sold inside the State of U.P.;