ASHWANI KUMAR MISHRA,J. - (1.) This revision is by the assessee against an order of tribunal dated 20.12.2006, whereby imposition of penalty under section 13A(4) of the U.P. Trade Tax Act against the assessee has been affirmed. Proceedings relates to the year 2004-2005.
(2.) The assessee is a registered dealer engaged in the trading of oil seeds. It is alleged that 212 bags of mustered was sold by it to another registered dealer situated in West Bengal, in respect of which relevant documents were available at the time the goods were intercepted at the exit check post on 18.11.2004. The invoice, mandi gate pass and other documents contained date as 12.11.2004 whereas the ability was having date prior thereto i.e. 10.11.2004. As per the documents produced, the goods ought to have crossed the State by 13.11.2004 whereas it was found crossing the State on 18.11.2004. The authorities suspected the transaction primarily on the ground that the ability was antedated and did not match with other documents; the goods reached the exit point late by 5 days; the ability produced was only a carbon copy and truck number was inserted by hand. Notices were issued by the assessing authority to which reply was given by the assessee. It was contended that the goods were being transported through agent and the truck having national permit was to reach Jhansi (the place where the assessee is registered) from Kanpur, as such, the ability specifying a date prior to issuance of invoice itself had been issued. It was also stated that the driver was a Muslim gentleman and on account of Eid festival had diverted the vehicle towards his village at District Fatehpur, on account of which there was some delay occasioned in reaching the exit point. The assessing authority examined all such contention and found that the explanation was bonafide. A finding was returned that the transaction was duly reflected in the books of account and both seller and purchaser are registered dealer. Proceedings with such findings were dropped. Revising authority, however, was not satisfied with the order passed by the assessing authority and consequently issued notices under section 10B to the assessee. A reply was submitted by the assessee, which was similar to one submitted before the assessing authority. The revising authority, however, has not agreed with the view taken by the assessing authority and proceeded to impose penalty to the tune of Rs. 84,480/-. The reason assigned in the order of the revisional authority is that similar transaction of sale of 212 bags of mustered is reflected in the books of account on 12.11.2004 and also on 21.11.2004 and the possibility of more such transactions having been undertaken without reflecting in the books of account cannot be ruled out. The revising authority also observed that the delay has not been adequately explained and possibility of sales having been made without payment of requisite amount of tax cannot be eliminated. The order of the revising authority has been challenged before the tribunal and the tribunal has concurred with the view taken by the revising authority and found that there was no justification to interfere with the order of the revising authority. Aggrieved by the order of the tribunal, the assessee is before this Court in the instant revision.
(3.) Learned counsel for the revisionist submits that the orders of the revising authority as affirmed by the tribunal are based on surmises and conjuncture and are unsustainable. It is also submitted that there was no finding in the order of the tribunal that the transaction is not reflected in the books of account or that there was an intention to evade payment of tax. Submission is that in its absence, the order itself is rendered without jurisdiction.;