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2007 DIGILAW 3057 (ALL)

BIHARI ENGINEERING WORKS v. COMMISSIONER OF TRADE TAX, U. P. , LUCKNOW.

2007-12-20

VIKRAM NATH

body2007
JUDGMENT VIKRAM NATH, J. - These two trade tax revisions have been filed by the dealer under section 11 of the U.P. Trade Tax Act, 1948 (in short, referred to as, "the Act") against the judgment and order of the Trade Tax Tribunal Bench - II, Kanpur passed in Second Appeal No. 490 of 1986 and 491 of 1986 relating to assessment years 1979-80 and 1980-81, respectively. They arise out of the proceedings for penalty under section 4B(5) of the Act. Heard Sri S. D. Singh, learned counsel for the revisionists - applicants and Sri K. M. Sahai, learned Standing Counsel for the department. According to the dealer it is engaged in the activity of manufacture and sale of road equipments. It applied for grant of recognition certificate under section 4B of the Act. Recognition certificate was granted on July 4, 1979 for a period of two years, i.e., 1979-80 and 1980-81. Subsequently it was renewed for a further period of three years. The dealer continued to make purchases of various raw materials which admittedly, according to it, were being used for manufacturing road equipments. These purchases were made against form IIIB either on concessional rate of tax or without payment of tax, as the case may be. The assessing authority while dealing with the assessment for the year 1979-80 raised objections with regard to the various purchases made on the ground that recognition certificate was only for manufacturing of iron and steel and it had nothing to do with road equipments. Accordingly penalty notice was also issued under section 4B(5) of the Act. The assessing authority imposed the penalty of Rs. 24,000 for the assessment year 1979-80 and a penalty of Rs. 8,000 for the assessment year 1980-81, vide order dated December 28, 1983. The appeal filed by the dealer with regard to the penalty for both the assessment years was dismissed by the Assistant Commissioner (Judicial), vide order dated December 13, 1985. Against the same two second appeals were filed which have also been dismissed by the Tribunal by order dated May 10, 2001. Aggrieved by the same the present revisions have been filed. The submission of the learned counsel for the dealer is that one particular officer in the department was annoyed with the dealer and he has actually tampered with the original records and has thus caused deliberate loss and harassment to the applicant. Aggrieved by the same the present revisions have been filed. The submission of the learned counsel for the dealer is that one particular officer in the department was annoyed with the dealer and he has actually tampered with the original records and has thus caused deliberate loss and harassment to the applicant. The original records with regard to the grant of recognition certificate was summoned and was produced. The same has also been perused by me. The question is whether the recognition certificate contained the specific words "iron and steel" or also the words "road equipment" as the items which were sought to be manufactured and sold by the dealer. The application form originally mentioned "road equipments". However the same has been scored out and "iron and steel" has been mentioned at Serial No. 6 of the application form. From perusal of the notings made on the application form it appears that the question had arisen as to whether "road equipments" was or was not an item in respect of which recognition certificate could be granted. It appears that probably it was not one of the goods/items in respect of which the recognition certificate could be granted and therefore apparently on the advice of the department, the dealer felt content with the goods "iron and steel" and accordingly necessary alteration was made in the application form. The submission on behalf of the dealer is that it was only on account of malice that the records have been tampered with and in that regard the dealer had taken serious action against the said officer by lodging complaints. From a perusal of the original records and also from the finding recorded by the authorities and the Tribunal it is very difficult to prima facie hold that any tampering was done with the records. Even if it had been done, it is not going to help the dealer. At no stage, was any recognition certificate issued to the dealer for manufacturing and sale of "road equipments". Further it has been recorded by the Tribunal that the dealer had been changing his stand from time to time and therefore, no credibility could be placed on the submissions. At no stage, was any recognition certificate issued to the dealer for manufacturing and sale of "road equipments". Further it has been recorded by the Tribunal that the dealer had been changing his stand from time to time and therefore, no credibility could be placed on the submissions. Further it is also to be noted that findings with regard to interpolation or tampering with the records is a finding of fact and the authorities below having considered the material on record and having appreciated evidence, this court in revisional jurisdiction cannot interfere with the same. The revisions are, accordingly, dismissed in limine.