Chawla Sugandhi Bhandar Vs State of U P And 2 Others (Allahabad High Court)
Summary: The Allahabad High Court considered a writ petition filed by M/S Chawla Sugandhi Bhandar challenging the order dated 30.04.2019 passed by the Additional Commissioner Grade-2 (Appeal), Commercial Tax, Aligarh and the order dated 22.02.2018 passed under Section 129(3) of the GST Act by the Assistant Commissioner (Mobile Squad), Commercial Tax, Aligarh. The petitioner, a GST-registered proprietorship engaged in trading pan masala, had purchased the goods from M/s Sarin & Sarin, Agra.
The goods were accompanied by a tax invoice, GR and e-way bill. The vehicle was intercepted and the goods were seized because one bag mentioned in the tax invoice was not found during verification. The petitioner explained that the bag might have fallen from the truck during transit or might have been missed by the driver. The proceedings under Section 129(3) were nevertheless sustained. In appeal, the Appellate Authority additionally took the view that the vehicle was not a heavy vehicle to which the applicable no-entry restriction would apply. The petitioner produced the vehicle’s Registration Certificate showing that Truck No. UP80CT-3246 was a truck with open body and contended that the new ground had been taken without giving an opportunity to respond.
The High Court found that the Registration Certificate specifically described the vehicle as a truck with open body and that this fact had not been denied by the State. The Court further observed that the Appellate Authority had taken the stand that the vehicle was a light commercial vehicle without supporting material or any clarification report from the Transport Department, Agra. Importantly, the Court found that the material on record showed no intention to evade tax and that no such finding had been recorded by the authorities below. Accordingly, the Court held that the impugned orders could not be justified in law, quashed the orders dated 30.04.2019 and 22.02.2018, allowed the writ petition and directed refund of any amount already deposited by the petitioner during the litigation within one month.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
The present writ petition has been filed assailing the order dated 30.04.2019 passed by Additional Commissioner Grade-2 (Appeal), Commercial Tax, Aligarh and order dated 22.02.2018 passed under Section 129(3) of the GST Act passed by respondent no.3/Assistant Commissioner, (Mobile Squad), Commercial Tax, Aligarh.
Counsel for the petitioner submits that petitioner is the proprietorship concerned registered under the GST and is engaged in the business of trading of ‘pan masala’. For the said purpose, the petitioner purchased the goods in question from the manufacturer, namely, M/s Sarin & Sarin, Agra. The seller has issued a tax invoice as well as GR and Eway Bill. The truck could not be loaded due to no entry enforced from 09:00 a.m. to 09:00 p.m. The vehicle goods were intercepted and seized by the respondent no. 3/Assistant Commissioner, (Mobile Squad), Commercial Tax, Aligarh, only on the ground that there was discrepancy on the quantity of items and goods discussed in the tax invoice as one bag was not found on verification.
Show cause notice was issued to the petitioner to which, reply was submitted specifically stating that one bag might have been fallen off the truck during transit or missed by the mistake of the driver of the truck.
However, not being satisfied with the same, the order has been passed under section 129(3) of the Act, which was assailed by the petitioner in appeal.
The Appellate Authority without considering the material on record passed the impugned order on new ground that truck in question is not a heavy vehicle to which ‘no entry’ will not be applicable on it. Hence, the present petition.
Counsel for the petitioner submits that Truck No. UP80CT-3246 is full fledged truck and in support of which, Registration Certificate has been brought on record, a copy of which has been annexed as Annexure-18 at page-93 of the writ petition. The petitioner has specifically mentioned the said fact in paragraph-33 of the writ petition, which has not been denied by the respondents in the counter affidavit in paragraph-25 and only general rebuttal has been averred.
Counsel for the petitioner further submits that a new ground taken by the Appellate Authority, without putting any notice to the petitioner, cannot be legally justified.
Learned Additional Chief Additional Counsel for the State-respondent supports the impugned order.
After hearing learned counsel for the parties, the Court has perused the records.
The record shows that the Vehicle No. UP80CT-3246 cannot be treated as a light vehicle as Registration Certificate specifically states that truck with open body. This fact has not been denied by the State in the counter affidavit. Further the Appellate Authority for the first time has taken the stand that the vehicle used for transportation was a light commercial vehicle to which, neither any material in support thereof was on record nor any clarification report was sought by the Transport Department, Agra. The material shows that there was no intention to evade tax as no finding has been recorded by the authorities below.
In view of the above, the impugned orders dated 30.04.2019 passed by Additional Commissioner Grade-2 (Appeal), Commercial Tax, Aligarh and order dated 22.02.2018 passed under Section 129(3) of the GST Act passed by respondent no.3/Assistant Commissioner, (Mobile Squad), Commercial Tax, Aligarh, cannot be justified in the eyes of law and same are hereby quashed.
The writ petition is allowed accordingly.
Any amount already deposited by the petitioner during the pendency of the present litigation shall be refunded to him within a period of one month.
