ASHWANI KUMAR MISHRA,J. - (1.) This revision is directed against the order passed by the tribunal in second appeal, rejecting assessee's challenge to the penalty proceedings as well as the order passed therein. The assessee is a registered dealer and is engaged in the business of manufacturing and sale of iron and steel. A tractor trolly was detained on 25.1.2015, upon which various iron and steel items were loaded. At the time of detention, none of the supporting documents including invoice, bill etc. were produced. A show cause notice was issued by the department on 26.1.2012. In response to the notice, assessee appeared on the very next day and produced the invoice. It was stated that the transaction was clearly reflected in the books of account and there was no intention to evade tax. The invoice which has been produced clearly mentions date and weight of M.S. Ingots, which were being sold, and price etc. The explanation submitted by the assessee was that tractor trolly was sent out of its business premises for getting it electronically weighed, as the purchaser wanted a weighment slip by electronic weighbridge. The authorities have consistently observed that since invoice produced by the assessee already mentions date, weight of M.S. Ingots sold and its price etc., as such, its explanation that the tractor trolly was being sent for getting it weighed by computerized weighbridge is not convincing. It was, therefore, held that invoice was subsequently prepared for the purposes of avoiding penalty proceedings.
(2.) Sri M.M. Rai, learned counsel for the revisionist submits that the assessee had appeared on the very next day pursuant to the notice issued and had produced material to show that the transaction was duly reflected in its books of account, and as such, penalty proceedings could not have been undertaken. Reliance is placed upon a decision of this Court in Elder Pharmaceuticals Ltd. v. Commissioner of Trade Tax, 1999 UPTC 931 , Commissioner of Commercial Tax v. Vijay Shree Distributors, 2012 Tax Law Diary 211 , and in recent decision in M/s. Sumit Enterprises v. Commissioner, Commercial Trade Tax, delivered in Trade Tax Revision No.83 of 2017 on 8.3.2017 .
(3.) Learned Standing Counsel, on the other hand, submits that law is settled that if assessee is able to establish that transaction was duly reflected in the books of account and that there was no intention to evade tax, the penalty proceedings cannot be initiated. Submission, however, is that on facts of the present case, the consistent view taken by the authorities are that invoice of M.S. Ingots was subsequently prepared. The inconsistency in the defence setup by the assessee has been highlighted to contend that the view taken by the authorities require no interference.;