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2024 DIGILAW 395 (ALL)

Ratan Enterprises v. State of U. P.

2024-02-06

SHEKHAR B.SARAF

body2024
JUDGMENT Shekhar B. Saraf, J. Heard Sri. Shubham Agarwal, learned counsel appearing on behalf of the petitioner and Sri. Rishi Kumar, learned Additional Chief Standing Counsel appearing on behalf of the State. 2. This is a writ petition under Article 226 of the Constitution of India wherein the petitioner is aggrieved by the order of penalty dated May 6, 2018 passed by the respondent No.2/Additional Commissioner, Commercial Tax, Mobile Squad Kasganj under Section 129(3) of the Uttar Pradesh Goods and Service Tax Act, 2017 (hereinafter referred to as "the Act") and the order of the Appellate Authority dated May 7, 2019 passed by respondent No.3/Additional Commissioner Grade-2 (Appeal), Commercial Tax, Aligarh under Section 107 of the Act. 3. The factual matrix in the present case is that the goods were accompanied by the invoice, E-Way Bill, Gate Pass, 9R and bitty. The only flaw, on the basis of which goods were detained, was that the Part B of the E-Way Bill was not filled up. However, as pointed out by the learned counsel appearing on behalf of the petitioner, the invoice and bitty contained the number of the vehicle. Furthermore, other relevant documents were accompanying the goods. There is no dispute to the fact that the goods were not in variance with the invoice and that the department was not able to indicate any kind of intention of the petitioner to evade tax apart from the technical error of non filling up of Part B of the E-Way Bill. 4. The ground raised by Mr. Agarwal is that part A of the e-way bill was dully filled and due to some technical difficulties part B of the E-Way Bill could not be filled up. He further submitted that there was no defect in the consignment nor any discrepancy in the documents. 4. The ground raised by Mr. Agarwal is that part A of the e-way bill was dully filled and due to some technical difficulties part B of the E-Way Bill could not be filled up. He further submitted that there was no defect in the consignment nor any discrepancy in the documents. He relied upon judgment of this Court in M/S Roli Enterprises v. State of U.P. and Others (Writ Tax No.937 of 2022 decided on January 16, 2024) wherein this Court had considered two judgements of the Allahabad High Court in VSL Alloys (India) Pvt. Ltd v. State of U.P. and another reported in 2018 NTN [Vol.67]-1 and M/s Citykart Retail Private Limited through Authorized Representative v. Commissioner Commercial Tax and Another reported in 2023 U.P.T.C. [Vol.113]-173 and held that non filling up of Part 'B' of the E-Way Bill by itself without any intention to evade tax would not lead to imposition of penalty under Section 129(3) of the Act. 5. Per-contra, learned counsel appearing on behalf of the respondents has relied upon the penalty order as well as the order passed by the Appellate Authority to indicate that part 'B' of the E- Way Bill was not filled up. 6. Upon consideration of the arguments made by counsel appearing on behalf the parties and upon perusal of the documents, it is clear that the department has been unable to indicate any intention of the petitioner to evade tax. 7. Furthermore, judgement relied upon by the petitioner are directly on the point and, accordingly, I see no reason to defer from the same. 8. In the present case also, the defect was of a technical nature only and without any intention to evade tax. Accordingly, the penalty imposed under Section 129(3) of the Act is not sustainable. 9. In light of the above, the orders dated May 6, 2018 and May 7, 2019 are quashed and set aside. The writ petition is allowed. Consequential reliefs to follow. The respondents are directed to return the security to the petitioner within four weeks from date.