# M/s Delhi Textiles Revisionist v. Commissioner, Commissioner Tax, U.P., Lucknow

- **Citation:** (2020) 2 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-07
- **Case number:** Sales/Trade Tax Revision No. 118 of 2010
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-delhi-textiles-revisionist-v-commissioner-commissioner-tax-u-p-lucknow-45712
- **Pages:** 5

## Headnote

A. Sales/Trade Tax - Penalty - Section
15A(1)(o) - Trade Tax Act, 1948 - driver
inadvertently forgot to carry the relevant
documents during transit - the machine
was not in working condition - it was
returned back - no sale took place - the
documents were subsequently produced
before the assessing authority - no
intention to evade tax made out.

Revision Allowed. (E-10)

List of cases cited: -

## Text

578 INDIAN LAW REPORTS ALLAHABAD SERIES

49. कवपक्ष के कवद्वान अकधवक्ता द्वारा
कजलाकधकार ,
कचत्रकूट
एवों
आयुक्त,
कचत्रकूटधाम मण्डल, बान्दा द्वारा पाररत आिेि
किनाोंक 17.01.2017 एवों 28.11.2017 का
समिमन ककया गया एवों यह कहा गया कक उक्त
आिेि पूणमतः कवकधक है एवों आयुक्त द्वारा
पाररत पहले के आिेि किनाोंक 05 मई, 2016
के अनुपालन में ह पाररत ककये गए हैं।

50. यहााँ यह कहना समाच न होगा कक
उपरोक्त जय प्रकाि उफम राजू भ उस चार
पकहया वाहन टवेरा में याच के साि उपन्धथित
िा एवों अपने िस्त्र को गाड़ क न्धिड़क के
बाहर ककये हुए िा एवों यह कक उक्त जय
प्रकाि भ उपरोक्त मु० सों 814/12 में सहअकभयुक्त िा कजसक याकचका इस न्यायालय
द्वारा उसके पक्ष में किनाोंक 12.03.2019 को
कनकणमत क गय है।

51. सम्यक कवचारोपरान्त एवों प्रस्तुत
कनणमयोों के अवलोकन के पश्चात मैं प्रस्तुत
याकचका में बल पाता हूाँ।

52. प्रस्तुत याकचका स्वीकार क जात है
तिा कजलाकधकार , कचत्रकूट द्वारा पाररत आिेि
किनाोंक
17.01.2017
एवों
आयुक्त,
कचत्रकूटधाम मण्डल, बान्दा द्वारा पाररत आिेि
किनाोंक 28.11.2017 को कनरस्त ककया जाता
है एवों यह आिेकित ककया जाता है कक यकि
याच के कवरुद्ध कोई अन्य अपराकधक मुकिमा
कायम न हो तो याच को अकवलम्ब समस्त
औपचाररकताएों पूणम करने के पश्चात िो माह के
अन्दर िस्त्र लाइसेंस प्रिान ककया जाए।
----------
(2020)02ILR A578

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Sales/Trade Tax Revision No. 118 of 2010

M/s Delhi Textiles ...Revisionist
Versus
Commissioner, Commissioner Tax, U.P.,
Lucknow ...Opposite Party

Counsel for the Revisionist:
Sri N.C. Gupta

Counsel for the Opposite Party:
C.S.C.

A. Sales/Trade Tax - Penalty - Section
15A(1)(o) - Trade Tax Act, 1948 - driver
inadvertently forgot to carry the relevant
documents during transit - the machine
was not in working condition - it was
returned back - no sale took place - the
documents were subsequently produced
before the assessing authority - no
intention to evade tax made out.

Revision Allowed. (E-10)

List of cases cited: -

1. Commissioner of Sales Tax V. S/S Haring
India Limited, Mohan Nagar, Ghaziabad 1988
UPTC 1343

2.
M/s
Polyplex
Corporation
Limited
V.
Commissioner of Trade Tax 2003 NTN (Vol. 23)
1061
(Delivered by Hon'ble Alok Mathur, J).)

1. Heard Sri N.C. Gupta, learned
counsel for the revisionist as well as Sri
Bipin Kumar Pandey, learned Standing
Counsel for the respondent.

2. By means of this revision the
revisionist has challenged the order dated
02.01.2010, passed by the Commercial
Tax Tribunal, whereby the second appeals
preferred by the revisionist as well as the
revenue have been rejected and the
2 All. M/s Delhi Textiles Vs. Commissioner, Commissioner Tax, U.P., Lucknow
579
Tribunal had up held imposition of penalty
as modified by the First Appellate
Authority.
This
revision
relates
to
assessment year 2005-06.

3. Facts of the case in brief are that
the revisionist is a partnership form
engaged in the business of manufacture
and sale of textiles and is registered under
Section 8-A of the U.P. Trade Tax Act,
1948 (hereinafter referred to as the "Act,
1948") as well as under the Central Sales
Tax Act. The revisionist has given order
for supply of the machine for cloth
procesing to M/s Disha Enterprises Delhi
and therefore, the aforesaid machine was
purchased by M/s Disha Enterprises Delhi
from M/s Romex Machine, TTC Area
Thaney, Mumbai, Maharashtra. The said
machine was booked by Vishal Haryana
Road Lines and same was transported by
vehicle alongwith bill no. 52, dated
08.03.2006, which was in the name of M/s
Disha Enterprises, A-9 West Jyoti Nagar,
100 Feet Road, delhi and thereafter the
same for delivery to the revisionist, for
which M/s Disha Enterprises issued bill
no. 0347, dated 13.03.2006 and bill no.
832000 and along with that import
declaration Form No. 1520870.

4. Contention of revisionist is that
the driver of the vehicle inadvertently left
behind the papers of M/s Disha Enterprises
and Form relating to import of the
machine from the State of Delhi to the
State of Uttar Pradesh and at the relevant
point of time had only paper of import of
machine from Maharashtra to Delhi. The
officers of the revenue intercepted the
vehicle on 13.03.20065 and the goods
were detained due to the fact that the
vehicle was not carrying all the papers and
declaration form as required under the law.
Admittedly, an amount of Rs.1,99,923/-
was deposited as security and goods were
released.

5. The assessing authority issued
show cause notice to the revisionist and
passed an order imposing penalty by
means of order dated 10.10.2007 under
Section 15A(1)(o) of the Act, 1948, for
Rs.1,99,923/-.

6. Aggrieved by the order of the
assessing
authority,
the
revisionist
preferred an appeal under Section 9 of the
Act, 1948 against the penalty order. The
First Appellate Authority partly allowed
the appeal of the revisionist and reduced
the penalty to Rs.99,223/- by means of
order dated 6th March, 2009.

7. Against the order of the First
Appellate Authority, the revisionist as well
as the revenue preferred second appeal
before the Trade Tax Tribunal (hereinafter
referred to as "the Tribunal"). The
Tribunal rejected both the appeals. Hence
this revision.

8. Learned counsel for the revisionist
vehemently urged that it was only due to
inadvertence that the driver of the vehicle
was not carrying the relevant documents
and the same were duly produced before
the assessing authority and therefore, there
was no intention on the part of the
revisionist to evade tax, and therefore,
penalty under Section 15A of the Act,
1948, could not have been imposed. It has
further been submitted on behalf of
revisionist that subsequently the machine
was not found in working condition and
the same was returned back to M/s Disha
Enterprises, New Delhi and therefore in
fact there was no sale. It is further
submitted that the machine in question was
being purchased for production for non
580 INDIAN LAW REPORTS ALLAHABAD SERIES
taxable goods and in the light of the
various provisions of the Act, 1948, the
transaction i.e. purchase of the machine in
question was not taxable and therefore
there was no loss of revenue to the State
Government and looking into the entire
facts of the case it cannot be said that there
was any intention to evade tax.

9. The First Appellate Authority,
looking into the aforesaid facts reduced the
penalty to Rs.99,923/-.

10. Learned Standing Counsel has
submitted
that
the
second
appeals
preferred by the revisionist as well as
revenue were rejected by the Tribunal, up
holding the order of the First Appellate
Authority.

11. Heard learned counsel for the
parties and perused the record.

12. The assessing authority has
imposed penalty on the revisionist only on
account of the fact that the driver of the
vehicle on which the goods in question
were being transported, was not carrying
the
relevant
Form-31/documents
prescribed for inter-State sale which was
mandatory for the revisionist to carry. The
Assessing Authority has concluded that
there was clear intention on the part of
revisionist to evade tax, inasmuch as there
were full chances that the said Form being
misused by the revisionist by subsequently
using he same for importing machines on
subsequent occasion, and therefore, in
exercise of power under Section 15A of
the Act, 1948, penalty was imposed.

13. The revisionist has submitted that
he had filed a detailed explanation
indicating that the said transaction was not
taxable and it is only due to human error
that the driver was not carrying the
relevant documents and subsequently the
declaration Form-31 and other relevant
documents were produced before the
assessing authority at the very first
instance. Thus, there was no intention to
evade tax.

14. The First Appellate Authority
accepted the submissions of the revisionist
and only on this score reduced the penalty
amount. Being aggrieved by the findings
recorded by the First Appellate Authority,
the revenue preferred second appeal before
the Tribunal. It is relevant to note that the
Tribunal rejected the appeal preferred by
the revenue and has not interfered with the
findings of fact recorded by the First
Appellate
Authority
in
this
regard,
inasmuch as, the Tribunal has also up held
the finding of First Appellate Authority
that the machine when not found in
working condition was returned back,
meaning thereby that the revisionist could
not had gained any thing from the said
transaction.

15. The only reason for up holding
the reduced penalty is a finding recorded
by the Tribunal that by not carrying the
relevant documents indicates the intention
of the revisionist to evade tax.

16. Considering the entire facts and
circumstances of the case, it is clear that
the First Appellate Authority has recorded
findings of fact that the goods were being
imported for production of non taxable
goods and therefore import of said
machine is not liable to be taxed.
Secondly, that the said machine was not
found in working condition and therefore
the same was returned to M/s Disha
Enterprises, therefore there was no sale on
which such penalty can be imposed.
2 All. M/s Delhi Textiles Vs. Commissioner, Commissioner Tax, U.P., Lucknow
581

17. Aforesaid facts, in the
opinion of this Court, should have been
considered by the Tribunal in their proper
perspective and in case explanation given
by the revisionist are accepted, then it is
clear that it indicates that there was no
intention to evade tax. Though the
Tribunal was not relying on any document
which may have given rise of any occasion
for the assessing authority to initiate such
proceedings,but looking into the fact that
the revisionist at the very first instance
produced the entire documents before the
assessing authority, indicates that the
revisionist fulfilled all the conditions as
prescribed under the Act, 1948 and even
then penalty has been imposed by the
assessing authority.

18.

Learned
counsel
for
the
revisionist has placed reliance on the
judgment in the case of Commissioner of
Sales Tax Vs. S/S Haring India Limited,
Mohan Nagar, Ghaziabad, 1988 UPTC
1343, wherein the Court in para 8 of the
judgment has observed as under :

"8. The provisions of Section 28A (6) as it stood at the material time have
been a subject matter of consideration by
a Division Bench of this Court in Jain
Shudh Vanaspati Ltd. Ghaziabad v. State
of U.P. and others, 1983 UPTC (1) 198.
Commenting upon the provision contained
in Section 28-A as it stands after
enactment of U.P. Act No. 33 of 1979, with
which we are concerned, it was observed
as under :

"The provision contained in
Section 28-A as it stands after enactment
of U.P. Act No. 33 of 1979 are materially
different. It cannot be said that there is
any assumption underlying therein that the
goods to which the provision of Section
28-A applies has actually been sold inside
the State and the section does not
authorise the sales tax authorities either to
seize the said goods or to penalise the
importer thereof on any such assumption.
Its present basis is the attempt to evade
tax. The power to detain the goods and
levy penalty in respect thereof cannot be
exercised merely for the reason that the
said goods were not accompanied by the
requisite documents or that the documents
accompanying them were false. This
power can be exercised only if the goods
detained are not accompanied by the
requisite documents or that the documents
accompanying themm are false and if
there is material before the detaining
authority to indicate that the goods are
being imported in an attempt to evade
assessment or payment of tax due or likely
to be due under the Act."

At another place it was again
observed as under :

"These
provisions
make
it
absolutely clear that the power to seize
and detain the goods under sub-section (6)
of Section 28-A cannot be exercised
merely because the goods, when they
reach
the
check
post,
were
not
accompanied by the declaration form
contemplated by Section 28-A(1). The real
occasion to detain the goods under subSection (6) arises only if the goods are not
accompanied by the requisite documents
and thee is material before the Check Post
Officer on which he can reasonably record
a satisfaction that the person importing
the goods was attempting to evade
assessment or payment of sales tax due or
likely to be due."

19. The revisionist has further relied
upon
the
judgment
passed
by
the
Uttrakhand High Court in the case of M/s
Polyplex
Corporation
Limited
Vs.
Commissioner of Trade Tax, 2003 NTN
582 INDIAN LAW REPORTS ALLAHABAD SERIES
(Vol. 23) 1061, where the Court has relied
on various judgment passed by this Court
has concluded that there should be clear
finding of fact by the concerned authority
that the goods were been transported with
intention to evade tax due or likely to be
due under the Act and unless such a
finding is recorded no penalty can be
imposed.

20. Considering the submissions of
learned counsel for the parties as well as
various legal pronouncements discussed
above, it is clear that there was no clear
finding
recorded
by
the
authorities
concerned to the effect that there was
intention to evade tax under the Act. The
finding of fact recorded by the Tribunal
have not been rebutted by the revenue and
therefore they have attained finality.

21. It is clear that the machine in
question was found not in working
condition and has been returned back and
even otherwise no concluded transaction
took place on which penalty could have
been imposed by the revenue.

22. In the light of the above, the
revision succeeds and impugned order
dated 02.01.2010, passed by the Tribunal
is hereby set aside.

23. The revision stands allowed.
----------
(2020)02ILR A582

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Civil Revision No. 104 of 2019

Waqf Nawab Amjad Ali Khan
 ...Revisionist
Versus
The Waqf Tribunal At Lucknow & Anr.
 ...Opposite Party

Counsel for the Revisionist:
Syed Ajaz Haider Rizvi, Mohd. Husain Rizvi

Counsel for the Opposite Party:
Bhola Singh Patel, Pravin Kumar Verma

A. Waqf Act, 1995-Section 83-Application
under section 83 of the Act rejected-relief of
eviction of defendant tenant -and for recovery
of rent, arrears and damages-not maintainableheld civil court is the remedy-section 83 has
been ammended-ammendment not taken note
in impugned order-Tribunal is empowered for
determining
the
issue-impugned
order
quashed-Revision allowed.

Held, In view of the amended provision
Tribunals are empowered for determination of
any dispute, question or other matter relating
to a waqf or waqf property, eviction of a tenant
or determination of rightsand obligations of the
lessor and the lessee of such property, under
the Act, 1995. The ammended provision has
not been taken noteby the Tribunal and it has
erred in relying upon decisions which are not
based on the ammended provision but are
based on the provision existing prior to the
amendment. (Para 6)

List of cases cited:-

1. Ramesh Gobindram (dead) through Lrs. vs.
Sugra Humayun Mirza Waqf, (2010) 8 SCC 726

2. Faseela m. vs. Munnerul Islam Madrasa
Committee and another ; (2015) 3 SCC (Civ)
419

3. Haji Ali Akbar vs. Waqf Alal-Allah/Alal Khair
aqf-W.P. no. 330/2019

4. Punjab Wakf Board vs. Sham Singh Harike,
(2019) 4 SCC 698 (refferred)

(Delivered by Hon'ble Rajan Roy, J.)