Allowed

M/S Maa Kamakhya Traders Ropahihut,Nagawn,Asam,Delhi Thru. Prop. Vinod Maurya v. Union of India Thru. Secy. Minister of Finance,New Delhi and 3 Others

Allahabad HC27 May 2024WTAX/56/2024

Case brief

AI extract

What is this about?

The High Court quashed GST penalty orders where the penalty was imposed before the expiry of the notice period for explanation and without findings on intention to evade tax. The matter was remanded to the Appellate Authority for fresh decision.

What did the court decide?

Order dated 06.12.2023 passed by the Appellate Authority in G.S.T. Appeal No.70 of 2023 is hereby quashed. Matter remanded to Appellate Authority.

M/S Maa Kamakhya Traders Ropahihut,Nagawn,Asam,Delhi… — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:40293

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Court No. - 19

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Case :- WRIT TAX No. - 56 of 2024

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Petitioner :- M/S Maa Kamakhya Traders Ropahihut,Nagawn,Asam,Delhi Thru. Prop. Vinod Maurya Respondent :- Union Of India Thru. Secy. Minister Of Finance,New Delhi And 3 Others Counsel for Petitioner :- Anand Dubey Counsel for Respondent :- A.S.G.I.,C.S.C.,Krishna Lal Yadav

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Hon'ble Subhash Vidyarthi,J.

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Heard Shri Anand Dubey, learned counsel for the petitioner and Shri Sanjay Sareen, learned Additional Chief Standing Counsel for the State.

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By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged validity of an order dated 10.03.2023 passed by the Assessing Authority/Commercial Tax Officer, Sector-3, (Mobile Squad-4), Commercial Tax/U.P. G.S.T., Lucknow, whereby the petitioner was directed to make a payment of Rs.8,33,000/- by 17.03.2023, failing which proceedings shall be initiated against him for recovery of the outstanding dues.

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A detailed order uploaded as a separate attachment to the order dated 10.03.2023 has been annexed with a supplementary affidavit, which states that the Vehicle No.UP78-DT-8339 was intercepted at a Cold Storage at Bakshi Ka Talab, Lucknow. The Vehicle driver stated that the goods have been loaded at Amin Gaon, Assam and he was to unload the goods at Shanti Prabhat Ice and cold Storage, Bakshi Ka Talab, Sitapur Road, Lucknow. The tax invoice mentioned transportation of goods from Amin Gaon, Assam to Delhi whereas the vehicle was intercepted inside the premises of a Cold Storage at Bakshi Ka Talab, Lucknow. It was a violation of Section 20 of I.G.S.T. Act read with Rule 46(O). The order states that a notice under Section129(3) was being issued to the petitioner for violation of Section 20 of I.G.S.T. Act read with Section 31 of the U.P. G.S.T. Act and Rule 46 (O) and the explanation by the petitioner was awaited. The petitioner was directed to submit his explanation by 17.03.2023 as to why penalty should not be imposed upon him.

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It is strange that even while giving opportunity to the petitioner to submit his explanation by 17.03.2023, A penalty was imposed against the petitioner on 10.03.2023 itself.

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Therefore, the opportunity of submitting an explanation was meaningless as before the time granted for the opportunity of submitting an explanation being expired, the punishment order was passed simultaneously with granting the opportunity.

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The petitioner filed an appeal against the aforesaid punishment dated 10.03.2023, which was dismissed by means of an order dated 6.12.2023 passed by the Additional commissioner, Grade-2 (Appeal) 4, State Tax, Lucknow.

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The submissions of the learned counsel for the petitioner is that the penalty can be imposed only if it is established that the Assessee had intention to evade the tax whereas the impugned order does not record any finding of fact to this effect.

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A perusal of the order dated 6.12.2023 passed by the Appellate Authority indicates that the Appellate Authority has rejected the contention of the petitioner that the vehicle was intercepted at a distance of about 25 to 30 Kilometers from the Cold storage, on the ground that the petitioner could not submit any evidence in this regard. However, the Appellate Authority has affirmed the impugned order passed by the Assessing Officer, without there being any evidence and finding regarding intention of the petitioner to evade tax. This difference of approach adopted by the Appellate Authority in dealing with the contention of the petitioner and the department in as much as the petitioner's contention has been rejected for want of evidence whereas the department's contention has been accepted, although there was no evidence to support that also, cannot be appreciated by the Court. The Appellate Authority should act in a judicial manner, adopting the same approach towards the Assessee and the department.

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Accordingly, the instant writ petition is allowed . The order dated 06.12.2023 passed by the Appellate Authority in G.S.T. Appeal No.70 of 2023 is hereby quashed .

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The matter is remanded to the Appellate Authority for being decided afresh, in accordance with law, expeditiously, say within a period of three months from the production of certified copy of this order, after giving due opportunity of hearing to the petitioner and dealing with the submissions made on its behalf.

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[Subhash Vidyarthi,J.]

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Order Date :- 27.5.2024 -Amit K-

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Digitally signed by :- AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

M/S Maa Kamakhya Traders Ropahihut,Nagawn,Asam,Delhi Thru. Prop. Vinod Maurya v. Union of India Thru. Secy. Minister of Finance,New Delhi and 3 Others

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M/S Maa Kamakhya Traders Ropahihut,Nagawn,Asam,Delhi Thru. Prop. Vinod Maurya v. Union of India Thru. Secy. Minister of Finance,New Delhi and 3 Others

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