Bansal Mill store, Station Road, Moradabad vs Commissioner of Trade Tax, U.P.at Lucknow.

Bharati Sapru, J.

This revision has been filed by the State for the assessment year 200203 against the order of the Tribunal dated 29.4.06.

The question of law referred to is as hereunder.:

(i)Whether in view of the facts and circumstances of the case, the Tribunal was justified in ignoring the provisions of Rule 85(9) of the Act and thus imposing liability of the lost form on the revisionist.?

(ii)Whether in view of the facts and circumstances of the case, the Tribunal was justified in ignoring the fact that the goods imported were T.M.T. Iron bars (Saria) which is not the business of the dealer at all.?

(iii)Whether in view of the facts and circumstances of the case, the Tribunal was justified in ignoring the fact that the revisionist had given an affidavit in this regard which was wrongly disbelieved by the authorities below without any cogent reason.?

(iv)Whether in view of the facts and circumstances of the case, the Tribunal was justified in wrongly interpreting the relevant rules and thus coming to a wrong conclusion.?

(v)Whether in any view of the matter, the order of the Tribunal is just, fair and sustainable in the eyes of law.?

The facts of the case are that the revisionist assessee is in the business of machinery parts, hardwares and pipe fittings. The assessee had obtained one Form31, which was lost by the assessee on 28.9.01. The assessee, in compliance of Rule 85(9) of the Act, completed all legal formalities, i.e., had informed the department and lodged an F.I.R. and also got notice for loss of the form published in two daily newspapers widely circulated in the region. The department had been informed of this loss on 17.10.01 and the news item had been published on 11.10.01. Rule 85(9) is quoted herein below.:

"(9) Every registered dealer to whom a declaration form is issued under subrule(4) shall maintain in a register in From XXXVI a true and complete account of every such form. If any form is lost, destroyed or stolen, the dealer shall forthwith report the fact to the Trade Tax Officer, make appropriate entries in the aforesaid register and take steps to issue proper public notice of such loss, destruction or theft."

However, it came to the notice of the department that the said Form31 was used by another person at the Entry check post on 5.8.02. It was used to import iron bars and sarias, which according to the assessee, are not items of his business.

It is the contention of the learned counsel for the assessee that he had discharged his responsibility and burden by due compliance of Rule 85(9) and, therefore, if any misuse was made of the form, subsequently no burden could be put on him for bearing the loss of revenue.

Learned counsel for the assessee has argued that once the assessee had complied with the terms of Rule 85(9) of the Rule, it lay upon the department to further comply with Rule 85(12) of the rules, which are quoted herein below.:

"12. The Commissioner shall from time to time publish in the Gazette the particulars of the declaration forms in respect of which a report is received under sub rule(9)."

Learned counsel for the assessee has argued that the Tribunal, by its order dated 29.4.06 has wrongly placed the burden on the assessee for bearing the loss of revenue made against subsequent use of Form31 on 5.8.02.

Learned Standing Counsel has argued that even subsequently, the burden would lie on the assessee to discharge the responsibility and he should be given evidence as to who had used the Form31.

However, after hearing both the counsels and after perusing the materials on record, it is abundantly clear that both the assessees had complied with the terms of the Rule 85(9), but the department on its part, had not complied with the provisions of Rule 85(12) of the Trade Tax Rules and in fact, the Tribunal has not returned any findings on this aspect at all.

From the perusal of the entire record, it is not apparent that the department had cared to comply with the Rules 85(12) of the Rules and therefore, the misuse of Form31 on the subsequent date on 5.10.02, after a period of ten months, could not be put on the assessee.

The contentions as raised by learned counsel for the assessee are fully justified in the facts and circumstances of the case. The assessee indeed had fulfilled his responsibility and had made due compliance of Rule 85(9). The mistake, if any, was on the part of the Department for noncompliance of Rule 85(12) and it is because the Department had not informed the check post at the proper time that Form31 was wrongly used.

In view of the above discussions, I set aside the order of the Tribunal dated 29.4.06 in so far as it imposes the burden of tax on the assessee for misuse of Form31.

This revision is allowed.