M/S Prateek Buildteck I PVT. LTD. vs. Commissioner Of Commercial Tax

Court No. - 1 Case :- SALES/TRADE TAX REVISION No. - 509 of 2015 Revisionist :- M/S Prateek Buildteck I Pvt. Ltd. Opposite Party :- Commissioner of Commercial Tax Counsel for Revisionist :- Ashok Kumar,Praveen Kumar Counsel for Opposite Party :- C.S.C. With Case :- SALES/TRADE TAX REVISION No. - 510 of 2015 Revisionist :- M/S Prateek Buildteck I Pvt. Ltd. Opposite Party :- Commissioner Of Commercial Tax Counsel for Revisionist :- Ashok Kumar,Praveen Kumar Counsel for Opposite Party :- C.S.C. Hon'ble Piyush Agrawal,J. Heard learned counsel for the parties. These two revisions have been filed against the order dated 9.10.2015 passed by Commercial Tax Tribunal, Ghaziabad in Second Appeal No. 301 and 305 of 2015 for Assessment Year 2008-09 and 2009-10 arising out of penalty proceeding initiated under Section 54 (1) (19) of UP VAT Act. The following question of law has been, inter alia, pressed by the revisionist in the aforesaid revisions:- (A) Whether upon the fact and circumstances of the case the imposition of penalty under Section 54 (1) (19) of the UP VAT Act can be imposed upon the revisionist, where there is no finding recorded by the authorities including the Tribunal that the revisionist, falsely or fraudulently claims an amount as input tax credit? Learned counsel for the revisionists submits that the revisionist being a registered dealer in the normal course of business has purchased the goods from the registered selling dealer who had made sale against tax invoices wherein TIN numbers were specifically mentioned. The transaction was covered through banking channel. He further submits that the tax mentioned on invoices have duly been paid, therefore, under the Act, the revisionist was entitled for claiming the benefit of input tax credit but the authorities have wrongly rejected the claim of input tax credit and initiated the penalty proceeding under Section 54 (1) (19) of UP VAT Act. The Tribunal being the last court of fact, without recording any finding with regard to fraudulent claim of input tax credit, has confirmed the penalty proceeding and that too maximum penalty of five times has been imposed. He prays for allowing the revisions. Per contra, learned Standing Counsel supports the order of the Tribunal and submits that the Tribunal has relied upon the judgement passed in Appeal No.

731 and 740 of 2013 delivered by the Tribunal and on that basis, has rightly imposed the penalty upon the revisionist on the ground that the firm/firms were not registered during the period of transaction. Learned Standing Counsel further submits that the revisionist has purchased the goods from the dealer, who was not registered and therefore, the claim of the input tax credit was false. He further prays that the revisions may be dismissed. The Court has perused the records. The penalty proceedings have been initiated against the revisionist on the purchases made from various dealers as purchases were not verifiable for some reasons or the other and while passing the assessment order, the input tax credit was rejected therefore the penalty under Section 54 (1) (19) was initiated. The Tribunal being the last court of fact has recorded the finding of fact that in view of the order passed in Appeal No. 739 and 740 of 2013, the penalty proceeding except with regard to purchases made from Mohit Enterprises, Pooja Enterprises, R.K. Trading Company and Tirupati Iron Traders, all other purchases were accorded and input tax credit was allowed but penalty proceeding were confirmed and quantum of penalty was reduced. The Tribunal has not recorded any finding nor details were mentioned with regard to the acceptance of input tax credit and dropping the penalty on the basis of other purchases but has only referred the appeal numbers as mentioned above. On a pointed query to the counsels appearing on behalf of parties as to whether any revision against the aforesaid second appeals were preferred before this Court and what is the outcome of the same, the counsels were not aware of that and prayed that the matter may be remanded to the Tribunal so that same fact can be verified by the Tribunal. On the said submission made by the counsels for the parties, the matter is remanded to the Tribunal. The order of the Tribunal is modified to the extent that orders of penalty have been affirmed on the basis of purchases made from the aforesaid parties may be verified and the Tribunal may record a specific finding as contemplated under Section 54 (1) (19) of UP VAT Act for confirming the imposition of penalty. The revisions are disposed of. The question of law is answered accordingly. Order Date :- 23.3.2022 Rahul Dwivedi/- Allahabad