PRAKASH KRISHNA, J. - (1.) RAISING a short controversy, the present revision has been filed challenging the orders passed by the authorities below including the Tribunal asking the dealer -applicant to pay the differential amount of tax due to wrong issuance of form under Section 3B of the U.P. Trade Tax Act, 1948.
(2.) THE dealer -applicant is a recognition certificate holder and it purchased refined furnace oil (R.F.O.) from Indian Oil Corporation. Although the dealer was entitled for concessional rate of tax in respect of purchase of R.F.O., it is not in dispute that it issued the form claiming total exemption from payment of tax. It is also not in dispute that the dealer -applicant purchased R.F.O. without paying any tax on such transactions. A notice under Section 3B of the Act was issued by the Department on the ground that up to the month of October 1991 it purchased R.F.O. to the tune of Rs. 18,75,851.69 by issuing such form IIIB claiming total exemption. In reply to the show -cause notice issued by the assessing authority, the applicant came out with the case that although it was entitled for partial exemption from payment of tax on such purchases but due to mistake of its employees the forms claiming total exemption were sent to the Indian Oil Corporation. The assessing authority examined the account books of the applicant and also the forms which were issued by it to the Indian Oil Corporation. In respect of purchase of refined furnace oil, it was found that the applicant was not authorised to issue form MB claiming total exemption and as such, it has made purchases worth Rs. 18,75,851.69 without payment of any tax. The said commodity was taxable at the concessional rate of five per cent at the hands of the applicant which comes to Rs. 93,792.58. The order for recovery of the said amount was passed accordingly. The said order was challenged unsuccessfully before the first appellate authority as well as before the Tribunal.
(3.) THE learned Counsel for the applicant submits that wrong form claiming total exemption was issued by mistake of its employees. Further submission is that unless a finding is recorded that by issuance of such forms, the tax leviable under the U.P. Trade Tax Act on such transactions ceases to be leviable or leviable at concessional rate, no liability can be fastened on the dealer -applicant. Further reference was made to the prescribed form of form IIIB as prescribed under the Rules and it was submitted that there is no column in the said form to disclose as to whether the transaction covered by the said form is totally exempt or partially exempt from payment of tax. Reliance was placed on certain decisions of this Court.;