Commissioner, Commercial Tax vs Bharti Dairy Farm

J.S. Khehar, C.J.—Vehicle bearing Registration No. UA-07/0560 was detained on 14.8.2006 from Raj Palace, Malakpur Octroi Post between Roorkee and Haridwar. The aforesaid vehicle was allegedly found loaded with skimmed milk powder. Transportation thereof was not permissible except after due authorization, which could be established on the basis of challan/transfer memo and other such like documents. Since no documents were produced by the respondent, the Assessing Officer imposed a penalty of Rs. 35,340/-.

Dissatisfied with the penalty order passed by the Assessing Officer dated 28.3.2007, the respondent preferred an appeal before the Joint Commissioner (Appeals)-I. Even before the first appellate authority, the respondent did not present any papers authenticating authorization of the transportation of the skimmed milk powder. Accordingly, the appeal preferred by the respondent was dismissed by an order dated 30.8.2007.

The respondent assailed the order passed by the Assessing Officer dated 28.3.2007 and the Joint Commissioner (Appeals)-I dated 30.8.2007 before the Commercial Tax Tribunal, Uttarakhand, Dehradun. Before the Commercial Tax Tribunal, Uttarakhand, Dehradun, the respondent produced certain documents, which were accepted by the appellate authority, whereupon the orders passed by the Assessing Officer, as well as, the first Appellate Authority were set aside by the Tribunal on 3.7.2009.

The order passed by the Commercial Tax Tribunal, Uttarakhand, Dehradun dated 3.7.2009 has been assailed through the instant revision petition.

Learned Counsel for the revision petitioner vehemently contends that it was imperative for the respondent to establish that the documents produced by him were available with the respondent on the relevant date, namely, 14.8.2006, when the goods were seized. It is submitted that no opportunity was given to the revision petitioner to controvert or disprove the facts/documents produced by the respondent. Accordingly, it is contended that the Tribunal passed the impugned order dated 3.7.2009 without affording a reasonable opportunity to the revision petitioner.

Based on the factual position noticed hereinabove, Learned Counsel for the parties state that the matter be remanded back to the Assessing Officer requiring the Assessing Officer to re-determine the factual position and accordingly on the basis thereof pass a fresh order on the subject, and in case the respondent fails to establish that the documents now relied upon were inexistence on 14.8.2006, the penalty earlier imposed by the order dated 28.3.2007 be ordered to be re-imposed. We are satisfied that the prayer made by the Learned Counsel for the rival parties would meet the ends of justice. We, accordingly, hereby set aside the order passed by the Commercial Tax Tribunal, Uttarakhand, Dehradun dated 3.7.2009. The controversy is remanded back for readjudication to the Assessing Officer. The respondent shall appear before the Assessing Officer on 23.8.2010. The Assessing Officer will examine the matter afresh based on the documents produced by the respondent. The Assessing Officer shall have the liberty to determine the authenticity of the aforesaid documents, as also, whether or not the said documents were inexistence on 14.8.2006 when the vehicle under reference was impounded. In case, the documents/material produced by the respondent before the Assessing Officer are found to be unauthentic or of a date later than 14.8.2006, the Assessing Officer shall pass a fresh order imposing penalty on the respondent.

The instant Commercial Tax Revision is disposed of accordingly.