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Judgment
Sudhir Agarwal, J.—Heard Sri R.R. Kapoor, learned counsel for the petitioner and learned Standing Counsel for the respondents.
This revision has been filed u/s 11 of U.P. Trade Tax Act, which relates to assessment year 1995-96. The question, which has been argued before this Court, is:
Whether in the facts and circumstances, levy of penalty u/s 15A(1)(a) was justified or not?"
Apparently, in my view, this by itself is not a question of law, but, in any case unless it can be shown that findings recorded by Court below are perverse or that there is a breach of any provision, no interference is warrant.
However, the question, which actually argued is, "whether revisionist was successful in rebutting presumption, which was drawn by revenue on account of non-endorsement of transit pass at the time of alleged exit of vehicle, transporting goods in question, from State of Uttar Pradesh, so as to wriggle out of liability of penalty."
In the present case revisionist placed before Assessing Authority a certificate issued by M/s. J.K. Industries Ltd. on 17.6.1998 to the following effect:
This is to certify that we have received materials in full vice & Invoice No. MTD/9111 dt. 10.7.95, TTD/6355 dt. 10.7.95 and TFD/10870 dt. 10.7.95 through the transporter M/s. E.T.T. On 18.7.95 vide their consignment note No. 4024982 dt. 10.7.95. Truck No. MP07G-0457.
It is said that in view of aforesaid certificate issued by M/s. J.K. Industries Ltd., penalty ought not to have been imposed. This aspect has been considered by Tribunal in the impugned order dated 07.9.2002 and says:
Before this Court, counsel for the revisionist could not dispute that Form F was issued in 1998 but what he said is that since R.R. Number has been mentioned in Form-F, therefore, it should be treated to be a valid document for rebutting presumption against revisionist. In the case in hand since this document came into existence in 1998 i.e. after three years, while the goods were transported in July, 1995, in absence of anything further to demonstrate that goods were actually taken away i.e. out of State of U.P., I do not find that presumption has been successfully rebutted by revisionist.
It is no doubt true that Apex Court in Sodhi Transport Co. and others Vs. State of U.P. and others, has held that presumption u/s 28B of U.P. Sales Tax Act, 1948 is rebuttable presumption but the onus lies upon person against whom such presumption is liable to be drawn to rebut the same. In the present case all the authorities below have recorded concurrent findings of fact that such presumption has not been successfully rebutted by revisionist and the aforesaid finding, in my view, has not been shown perverse or contrary to record, in any manner.
The question argued as also raised in memo of revision, noticed above, are answered against the assessee. Dismissed.