YASHWANT VARMA,J. - (1.) Heard Sri Suyash Agarwal, learned counsel for the revisionist and Sri A.C. Tripathi, the learned Standing Counsel for the State.
(2.) This revision is directed against an order of the Tribunal dated 31 August 2006 which has restored a levy of penalty imposed upon the assessee in light of the provisions of Section 15A(1) (o). The allegation was that the articles in question has been imported into the State in violation of the mandate of Section 28-A. In the First Appeal which was taken by the assessee, the Authority found that the transactions of purchase as well as the ultimate export were duly recorded in the books of account of the assessee. In view thereof, it proceeded to hold that there was no intent to evade payment of tax. In the Appeal taken by the Department however, the Tribunal has interfered with the said order and has accordingly restored the imposition of penalty. The Court finds itself unable to sustain this judgment for the following reasons.
(3.) Sri Agarwal, learned counsel for the revisionist, has rightly placed reliance upon the decision of the Court rendered in Prag Rice And Oil Mills, Aligarh v. Commissioner of Sales Tax; [2004 U.P.T.C. 1196] to contend that the mere absence of a Form-31 would not justify the imposition of penalty unless there be an added finding on facts that there was a deliberate intent to evade payment of tax. As the Court reads the order of the Assessing Authority and the Tribunal, it appears that both the said Authorities have clearly misdirected the enquiry which was liable to be undertaken. The assessee has been imposed a penalty based upon an enquiry on the issue as to whether the declaration in the Rajasthan Forms were in accord with the actual nature and character of the articles which were imported into the State of U.P. The Tribunal has curiously failed to note the categorical finding of fact which came to be recorded by the First Appellate Authority that the transactions in question stood duly recorded in the books of the assessee. This circumstance was sufficient to come to a conclusion that there was no intent to evade payment of tax.;