Cause title — parties, addresses and appearances
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT TAX No. - 899 of 2019
Court No. - 7
HON'BLE PIYUSH AGRAWAL, J.
Heard Sri Praveen Kumar, learned counsel for the petitioner and Sri Ravi
Shanker Pandey, learned Additional Chief Standing Counsel for the State-
respondent.
The present writ petition has been filed assailing the order dated 30.04.2019
passed by Additional Commissioner Grade-2 (Appeal), Commercial Tax,
Aligarh and order dated 22.02.2018 passed under Section 129(3) of the GST
Act passed by respondent no.3/Assistant Commissioner, (Mobile Squad),
Commercial Tax, Aligarh.
Counsel for the petitioner submits that petitioner is the proprietorship
concerned registered under the GST and is engaged in the business of
trading of 'pan masala'. For the said purpose, the petitioner purchased the
goods in question from the manufacturer, namely, M/s Sarin & Sarin, Agra.
The seller has issued a tax invoice as well as GR and Eway Bill. The truck
could not be loaded due to no entry enforced from 09:00 a.m. to 09:00 p.m.
The vehicle goods were intercepted and seized by the respondent no.
3/Assistant Commissioner, (Mobile Squad), Commercial Tax, Aligarh, only
on the ground that there was discrepancy on the quantity of items and goods
discussed in the tax invoice as one bag was not found on verification.
Show cause notice was issued to the petitioner to which, reply was submitted
specifically stating that one bag might have been fallen off the truck during
transit or missed by the mistake of the driver of the truck.
However, not being satisfied with the same, the order has been passed under
Versus
Counsel for Petitioner(s)
:
Praveen Kumar
Counsel for Respondent(s)
:
C.S.C.
M/S Chawla Sugandhi Bhandar
.....Petitioner(s)
State Of U P And 2 Others
.....Respondent(s)
section 129(3) of the Act, which was assailed by the petitioner in appeal.
The Appellate Authority without considering the material on record passed
the impugned order on new ground that truck in question is not a heavy
vehicle to which 'no entry' will not be applicable on it. Hence, the present
petition.
Counsel for the petitioner submits that Truck No. UP80CT-3246 is full
fledged truck and in support of which, Registration Certificate has been
brought on record, a copy of which has been annexed as Annexure-18 at
page-93 of the writ petition. The petitioner has specifically mentioned the
said fact in paragraph-33 of the writ petition, which has not been denied by
the respondents in the counter affidavit in paragraph-25 and only general
rebuttal has been averred.
Counsel for the petitioner further submits that a new ground taken by the
Appellate Authority, without putting any notice to the petitioner, cannot be
legally justified.
Learned Additional Chief Additional Counsel for the State-respondent
supports the impugned order. After hearing learned counsel for the parties, the Court has perused the records. The record shows that the Vehicle No. UP80CT-3246 cannot be treated as a light vehicle as Registration Certificate specifically states that truck with open body. This fact has not been denied by the State in the counter affidavit. Further the Appellate Authority for the first time has taken the stand that the vehicle used for transportation was a light commercial vehicle to which, neither any material in support thereof was on record nor any clarification report was sought by the Transport Department, Agra. The material shows that there was no intention to evade tax as no finding has been recorded by the authorities below. In view of the above, the impugned orders dated 30.04.2019 passed by Additional Commissioner Grade-2 (Appeal), Commercial Tax, Aligarh and order dated 22.02.2018 passed under Section 129(3) of the GST Act passed by respondent no.3/Assistant Commissioner, (Mobile Squad), Commercial Tax, Aligarh, cannot be justified in the eyes of law and same are hereby quashed.
The writ petition is allowed accordingly. Any amount already deposited by the petitioner during the pendency of the present litigation shall be refunded to him within a period of one month. September 11, 2025 Monika (Piyush Agrawal,J.) MONIKA KESARWANI High Court of Judicature at Allahabad
