JUDGMENT : RITU BAHRI, C.J. 1. The revisionist-M/s Kalka Ji Enterprises, has come up in the revision against the order dated 07.04.2022, passed by the learned Commercial Appellate Tribunal, Uttarakhand, Dehradun, whereby his appeal against the order dated 10.03.2021, passed by the Joint Commissioner (Appeals), has been dismissed, and the penalty of Rs.96,080/- has been upheld. 2. The brief facts of the case are that a Mobile Unit Rishikesh, has stopped the truck of the revisionist, which was loaded with scrap, and the Bill No. 5, dated 18.05.2016, Rs.2,40,200/- was available. The inspection of the declared business was done by the Department Officials, and on the address given by the Driver of the truck, no business was found being done there. The explanation given by the trader was that due to the family discord, the person present there had stated knowingly that no business activity was being carried out. On account of the discord in the family, the trader had stated that accounts of books were kept in home. The Driver further informed that goods were loaded from M/s R.M.I Steel Limited Dhalwala. The trader further stated that goods had been purchased from unregistered firm. 3. Since there was no transaction in the books, which were given by the revisionist, the penalty was imposed on the trader under section 43 of the Act, by respondent no. 4 vide order dated 17.08.2016 stating that the aforesaid goods were being traded with an intention to evade the tax i.e. Rs.96,080/-, which was 40% of the total amount of goods. As per Annexure no. 2, he had paid the total amount of penalty under protest. 4. Thereafter, the appeal of the revisionist was allowed by the judgment dated 28.01.2017, on the ground that no proper opportunity of hearing was given before passing the order, and the matter was remanded. On remand, vide order dated 27.01.2018, Annexure no. 3, it was held that there was an intention of the revisionist to evade the tax with respect to the aforesaid transaction, and the imposition of the penalty was upheld. Thereafter, he filed an Appeal No. 37 of 2018, before the respondent no. 2, and vide order dated 10.03.2021, Annexure no. 4, the appeal was rejected by the respondent no. 2. 5. The second appeal filed against the above said order Annexure no. Thereafter, he filed an Appeal No. 37 of 2018, before the respondent no. 2, and vide order dated 10.03.2021, Annexure no. 4, the appeal was rejected by the respondent no. 2. 5. The second appeal filed against the above said order Annexure no. 4, was also rejected vide impugned judgment and order dated 07.04.2022, by observing that the Officer, who had inspected and search the premises of the revisionist, was done in accordance with law. 6. Learned counsel for the revisionist has argued that as per section 43 of the Value Added Tax Act, the inspection of the premises was done by the Officer below the rank of Joint Commissioner, and whatever search he conducted could not be made basis to impose the penalty. 7. The perusal of the order of the Joint Commissioner, Appeals, shows that when the search was conducted, a statement had been given by the vehicle driver Shri Maqbool, in front of the mobile team that the goods were being transported and were owned by M/s R.M.I. Steel Limited Dhalwala, loaded from Balaliya, Rishikesh, Tin No. 05015779888. However, the firm owner said that the said goods were purchased from the unregistered company, which was contradictory, and no books of account was presented by the businessman to the Tax Assessing Officer or before the Mobile Unit Officer, to prove said transaction. Under section 43 (5) of the Value Added Tax Act, which deals with imposition of the penalty, which reads as under: “43. Power to seize goods: (1).... (2).... (3).... (4)..... (5) If such officer, after taking into consideration the explanation, if any, of the dealer, or as the case may be, the person in-charge and giving him an opportunity of being heard, is satisfied that the said goods were wilfully omitted from being shown in the accounts, registers and other documents referred to in sub-section (1), it shall pass an order imposing a penalty not exceeding forty percent of the value of such goods as he deems fit.” 8. As per the above said section, the penalty can only be imposed when some transaction has not been recorded in books of accounts. Since this transaction had not been recorded in books of accounts thereby the penalty was imposed as per section 43 (5) of the Act. 9. As per the above said section, the penalty can only be imposed when some transaction has not been recorded in books of accounts. Since this transaction had not been recorded in books of accounts thereby the penalty was imposed as per section 43 (5) of the Act. 9. With respect to the argument that business premises could not be inspected by the Mobile Unit, a reference is now being made to section 42 (3) of the Uttarakhand Value Added Tax Act, which reads as under: “(1)................................... (2)..................................... (3) Notwithstanding anything contained in this section, no business premises or residential accommodation shall be entered into, inspected or searched by such officer unless specially authorized by the Commissioner or such other officer not below the rank of a Joint Commissioner, as may be authorized in this behalf by the Commissioner. Explanation: For the purpose of this sub section, a place where the person is engaged in business will also include any other place in which the person engaged in business or the said employee or other person attending or helping in business states that any of the books of accounts or other documents or any part of the cash, stock or other valuable article or things relating to the business are or is kept.” 10. The Tribunal while referring to the aforesaid provision held that the Mobile Unit had not entered the business premises of the trader as there was no business activity going on. The Mobile Unit had only enquired regading the tax of trade in the business premises, which is not barred by the provisions contained under section 43 (3) of the Uttarakhand VAT Act. 11. Another ground taken by the assessee was that there was a family dispute and on account of this, the accounts books were kept at home, however, no evidence was led to show that there was any family dispute. 12. Subsequently and lastly, the ground taken by the learned counsel for the revisionist that as per the assessment order dated 10.11.2020, there is no contravention of the provisions of VAT Act, and in this backdrop the penalty order should be set aside, and in the alternative, he is praying that the penalty be reduced from 40% to 20%. 13. 12. Subsequently and lastly, the ground taken by the learned counsel for the revisionist that as per the assessment order dated 10.11.2020, there is no contravention of the provisions of VAT Act, and in this backdrop the penalty order should be set aside, and in the alternative, he is praying that the penalty be reduced from 40% to 20%. 13. As far as this last ground is concerned, this was the case of evasion of tax without maintaining the accounts books with regards to the entry of the goods, which was being carried in the truck. Hence, the assessment order cannot be made a ground to escape from the penalty proceedings, which was initiated on account of the non production of the account books with respect to carrying the goods from unregistered dealer. 14. There is no ground made out to interfere in the impugned order passed by the Tribunal. Since the revisionist has already paid the penalty under protest as receipt Annexure no. 2, no ground is further made out to reduce the penalty from 40% to 20%. Accordingly, the revision is dismissed.