ASHWANI KUMAR MISHRA,J. - (1.) Penalty proceedings under Section 4(b)(5) of the U.P. Trade Tax Act have been questioned in this revision on the ground that the two Form-3(B), which are stated to have been utilized on 30th August, 1998 and in September, 1998, were already lost, and had been duly notified to the department, and this fact was also published in Hindi Dainik Jagran on 28th March, 1998. It is contended that once this aspect of the matter was admitted on record, the authorities were not justified in drawing presumption that it was the assessee who has utilized these forms.
(2.) Learned Standing Counsel although has supported the view of the Tribunal, but the factual averments contended before this Court, are not shown to be wrong.
(3.) From the materials placed before this Court, it is not in issue that two forms in question, had already been notified by the assessee to have been lost to the department on 17th April, 1998. This fact was otherwise duly notified in Hindi Dainik Jagran on 28th March, 1998. The factual averments in that regard are undisputed. There is further no definite information that purchases were made by these forms by the revisionist only. In such circumstances, I am of the opinion that the conclusion drawn by the Tribunal about misuse of form 3(B) by the revisionist, so as to levy penalty, is based only on surmises and is not backed by any material available on record.;