# M/s Hawkins Cookers Limited, Juhi Kanpur v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-12
- **Case number:** Writ Tax No. 739 of 2020
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-hawkins-cookers-limited-juhi-kanpur-v-state-of-u-p-ors-51318
- **Pages:** 4

## Headnote

Taxation Law - U.P. Goods and Services
Tax Act, 2017 - Section 129 - Rule 138 -
Penalty for Incorrect E-Way Bill - Petitioner
challenged penalty order dated 14.02.2020 and
appellate order dated 13.10.2020 for incorrect
place of supply in four out of eight E-Way bills -
Held, goods intercepted on 31.01.2020 were
accompanied by correct invoices and bilties
reflecting destination (Satharia, Jaunpur), but
182 INDIAN LAW REPORTS ALLAHABAD SERIES
four
E-Way
bills
erroneously
mentioned
petitioner's registered office (Kanpur) due to
auto-population of GSTIN - No intention to
evade tax, as correct address in invoices, bilties,
and four E-Way bills, and incorrect address was
petitioner's registered office - Technical/clerical
error, not a wholesale disregard of rules - M/s
Hindustan Herbal Cosmetics Vs St. of U.P.
followed, distinguishing Pushpa Devi Jain,
Carpenters Classics India Pvt. Ltd., and Indus
Towers Ltd. due to differing factual matrices
(expired/absent E-Way bills or no declaration) -
Penalty under Section 129 requires intent to
evade tax, which department failed to establish
- Impugned orders quashed, as penalty lacked
legal basis. (Para 8-13)

Writ petition allowed.

List of Cases Cited:

## Text

2 All. M/s Hawkins Cookers Limited, Juhi Kanpur Vs. State of U.P. & Ors.
181
duties, they go for training at several
rounds, lists are prepared of the employees
for election duties and other ancillary
works are done by the employees of the
State, hence, the ground of delay taken-up
by the revenue appears to have a close
connection
with
the
Parliamentary
Elections of 2019 and U.P. State Elections,
2022.

14. Learned counsel for the
respondent assessee referring the Rule 39
of the U.P. VAT Rules, has argued that as
per this rule, the account books and
documents maintained by a dealer or other
person shall be for a period of eight years
after expiration of the assessment year to
which
such
books,
accounts
and
documents: It is notable that in this Rule it
has also been provided that where any
proceedings are pending against a dealer,
he shall maintain books, accounts beyond
period of eight years till such proceedings
are finalized. In this case, it is undisputed
that account books of the assessee have
been rejected by the assessing authority
and assessee had filed first appeal and the
learned first appellate authority has
remanded the matter to to the assessing
authority for passing assessment order
afresh, hence, the assessment proceedings
for the relevant year is yet not been
finalized and matter is still in dispute.
Hence, as per provisions given in Rule 39,
the assessee has to maintain account books
and other relevant documents for the
relevant year till the proceedings finalized.
Hence, on this point, the objection of the
assessee is not tenable in the eyes of law."

7. The Tribunal has also distinguished
the judgment of the Supreme Court
rendered in Chief Post Master General
and Others' case (supra) and relied upon
the judgment of the Supreme Court in
Collector, Land Acquisition, Anantnag
and Another v. Mst. Katiji and Others
reported in (1987) 2 SCC 107 to support its
decision.

8. In light of the above, I am of the
view that the delay is explained by the
authorities and the appeal is required to be
heard by the Tribunal, as so much time has
already elapsed. I am also of the view that
the hearing of the appeal should be
expedited. Accordingly, the Tribunal is
directed to hear and decide the appeal
within four months from date.

9. With the aforesaid observations, the
revision petition is disposed of.
----------
(2024) 2 ILRA 181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 739 of 2020

M/s
Hawkins
Cookers
Limited,
Juhi
Kanpur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shubham Agrawal

Counsel for the Respondents:
C.S.C.

Taxation Law - U.P. Goods and Services
Tax Act, 2017 - Section 129 - Rule 138 -
Penalty for Incorrect E-Way Bill - Petitioner
challenged penalty order dated 14.02.2020 and
appellate order dated 13.10.2020 for incorrect
place of supply in four out of eight E-Way bills -
Held, goods intercepted on 31.01.2020 were
accompanied by correct invoices and bilties
reflecting destination (Satharia, Jaunpur), but
182 INDIAN LAW REPORTS ALLAHABAD SERIES
four
E-Way
bills
erroneously
mentioned
petitioner's registered office (Kanpur) due to
auto-population of GSTIN - No intention to
evade tax, as correct address in invoices, bilties,
and four E-Way bills, and incorrect address was
petitioner's registered office - Technical/clerical
error, not a wholesale disregard of rules - M/s
Hindustan Herbal Cosmetics Vs St. of U.P.
followed, distinguishing Pushpa Devi Jain,
Carpenters Classics India Pvt. Ltd., and Indus
Towers Ltd. due to differing factual matrices
(expired/absent E-Way bills or no declaration) -
Penalty under Section 129 requires intent to
evade tax, which department failed to establish
- Impugned orders quashed, as penalty lacked
legal basis. (Para 8-13)

Writ petition allowed.

List of Cases Cited:

1. M/s Hindustan Herbal Cosmetics Vs St. of
U.P.; Writ Tax No. 1400 of 2019, decided on
02.01.2024

2. Pushpa Devi Jain Vs Assistant Commissioner
of Revenue; 2023-T.L.D.-89

3. Carpenters Classics India Pvt. Ltd. Vs
Assistant St. Tax Officer; (2019) U.P.T.C. [Vol.
101]-14

4. The Assistant St. Tax Officer Ernakulam Vs
M/s Indus Towers Ltd., Pallarivattom; (2018)
U.P.T.C. [Vol. 99]-881

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Sri Shubham Agrawal,
counsel appearing on behalf of the
petitioner and Sri Ravi Shanker Pandey,
learned Additional Chief Standing Counsel
appearing on behalf of the respondents.

2. This is an application under Article
226 of the Constitution of India, wherein
the writ petitioner seeks a writ of certiorari
for quashing the penalty order dated
February 14, 2020 and the order passed in
appeal dated October 13, 2020.

Facts of the case

3. Petitioner is engaged in the
business of manufacturing and selling of
pressure cookers under the brand name of
Hawkins. The principal place of business of
the petitioner is situated at 83/6, ?.?.
Market, Juhi, Kanpur, The factory of the
petitioner is situated at Plot No. A- 1, A-2,
A-14, A-15,
SIDA
Industrial
Estate,
Satharia,
Jaunpur.
Petitioner
purchases/stock transfers various parts/raw
materials for manufacturing of pressure
cookers from outside the state of UP, for
being
delivered
in
its
factory
(manufacturing unit) situated at Satharia,
Jaunpur. The petitioner had purchased the
raw materials for manufacturing of pressure
cookers in the month of January 2020, from
various suppliers situated in Maharashtra.
Petitioner, thereafter, stock transferred
certain raw materials from Maharashtra, for
being delivered to its factory. In four out of
the 8 E-Way bills, the place of supply has
been correctly mentioned to be the factory
of the petitioner situated at Satharia,
Jaunpur. In the other 4 E-Way bills, the
place
of
supply
has
been
wrongly
mentioned to be the principal place of
business of the petitioner situated at
Kanpur, where no manufacturing is done.
The reason for the aforesaid mistake having
been done by some of the parties is that on
filling the GSTIN (registration number) of
the petitioner while generating the E-Way
bill, the principal place of business is
automatically reflected in the place of
supply(which is auto populated). It is the
duty of the person generating the E-Way
bill to change the place of supply if the
same is different from the principle place of
business.

4. The goods were intercepted on
January 31, 2020 and the memo of
2 All. M/s Hawkins Cookers Limited, Juhi Kanpur Vs. State of U.P. & Ors.
183
detention was issued on February 1, 2020
and subsequently the goods were seized on
February 3, 2020 by issuing MOV-06.

Contentions of the Petitioner

5. Mr. Shubham Agarwal, Advocate
has submitted that due to an inadvertent
error/overlooking by the accountants of the
suppliers who generate the E-Way bill, they
failed to change the place of supply which
is automatically displayed. Thus the E-Way
bills have been generated containing the
wrong place of supply of goods at Kanpur
instead of Satharia, Jaunpur. The delivery
of raw materials cannot be taken by the
petitioner at Kanpur, since the raw
materials are required for manufacturing of
pressure cookers which is done only at its
factory in Satharia, Jaunpur, and not at the
principal place of business. Thus the
mentioning of wrong place of supply in the
E-Way bill was merely a technical breach.

6. He further submitted that the
addresses that were wrongly written in the
four e-way bills were addresses of the
registered office of the petitioner. He
submitted that the same was a technical
error only as there was no intention of the
petitioner to hide the destination in the eway bills. Infact, he submitted that all the
invoices
and
the
bilties
that
were
accompanying the goods bear the correct
address of destination that is Jaunpur. The
mistake committed in the four e-way bills
with regard to mentioning of the registered
office of the petitioner can only be seen as
a clerical and typographical error and
nothing more. He relied on a judgement of
this Court in M/s Hindustan Herbal
Cosmetics Vs. State of U.P. and 2 others
in Writ Tax No.1400 of 2019 dated January
2, 2024, where this Court on a similar
factual matrix had quashed the penalty
order and the order passed in appeal.

7. Per contra, Mr. Pandey, submitted
that the error/mistake in this case was grave
in nature and raised a presumption of
evasion of tax. He relied on the judgement
in the cases of Pushpa Devi Jain Vs.
Assistant Commissioner of Revenue
reported
in
2023-T.L.D.-89
and
Carpenters Clasics India Pvt. Ltd. Vs.
Assistant State Tax Officer & 2 Others
reported in (2019 U.P.T.C. [Vol. 101] - 14)
and in The Assistant State Tax Officer
Ernakulam and Another Vs. M/s Indus
Towers Limited, Pallarivatton reported
in (2018 U.P.T.C. [Vol.99] - 881) to
buttress his argument that non-compliance
of the provisions of the Uttar Pradesh
Goods and Service Tax, Act, 2017
(hereinafter referred to as the 'Act') and
Rule 138 of the Act, would result in
imposition of penalty. He further supported
the impugned orders.

Analysis and Conclusion

8. Upon a perusal of the detention
order, the order imposing penalty and the
order passed in appeal, a common thread
appears to run through the same, i.e. there
was non-compliance of the Rules by
putting the wrong address in four of the eway bills. The common thread that also
runs through these orders is that the
invoices and the bilties in all the eight
invoices and in four of the e-way bills was
correct in all respect including the address.
Undisputedly, the address in four of the eway bills was incorrect. However, what is
to be seen is that this particular address was
not an anonymous address, but was the
address of the registered office of the
petitioner. The explanation provided by the
petitioner with regard to a mistake on the
184 INDIAN LAW REPORTS ALLAHABAD SERIES
part of the supplier to have populated the
incorrect address is not far fetched,
especially since the correct addresses were
mentioned in all the eight invoices and the
eight bilties.

9. From the above factual matrix, it does not
appear that there was any intention whatsoever to
evade tax.

10. The judgement in Pushpa Devi Jain
(Supra) is in relation to an expired e-way bill and
the factual matrix therein is distinguishable from
the present case. The Kerla High Court's
judgement in Carpenters Clasics India Pvt. Ltd.
(Supra) is also on a completely different footing
as there was no e-way bill provided at all.
Accordingly, this judgement is of no help to the
department. The judgement in Indus Towers
Limited, Palarivatton (Supra) deals with the
factual matrix where no declaration was uploaded
on the site of the department, and accordingly,
reasonable presumption of intention to evade tax
was raised in that case. Therefore, this case is also
distinguishable on the facts itself.

11. As held by this Court in umpteen cases,
where penalty is being imposed under Section 129
of the Act an intention to evade tax should be
present. Now, such an intention to evade tax may
be presumed by the department in cases where
there is wholesole disregard of the Rules. For
example, in the event the goods are not
accompanied by the invoice or the e-way bill is
completely absent, a presumption may be raised
that there is an intention to evade tax. Such a
presumption of evasion of tax then becomes
rebuttable by the materials to be provided by
the owner/transporter of the goods. However,
when
most
of
the
documents
are
accompanied with the goods and there are
some typographical and/or clerical error, a
presumption to evade tax does not arise. It is
then upon the department to indicate that
there was an intention to evade tax.

12. In the present case, it is palpably clear
that the goods were accompanied with the
relevant invoices, bilty documents and the e-way
bills. It is to be noted that the invoices and bilty
documents also contain the correct address of the
destination and only four out of eight of the e-way
bills had the incorrect address. Even this incorrect
address was the registered office of the petitioner.
In such a case, no presumption to evade tax arises
at all. The mere technical error committed by the
petitioner cannot result in imposition of such harsh
penalty upon the petitioner. As quoted in the
Arthashastra by Chanakya that 'Governments
should collect taxes like a honeybee collects honey
from a flower without disturbing its petals.'

13. In the light of the above, I am of the
view that the penalty imposed in this particular
case is without any basis in law, and accordingly,
impugned penalty order dated February 14, 2020
and the order passed in appeal dated October 13,
2020 are quashed and set aside.

14. The writ petition is allowed.
----------
(2024) 2 ILRA 184
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 975 of 2023

M/s Yadav Steels, Pala Road, Aligarh U.P.
 ...Petitioner
Versus
Addl.
Commissioner
(Grade-2)
State,
Aligarh U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Pandey, Sri Saurabh
Pandey

Counsel
for
the
Respondent: