List of Cases u/s 51 of PVAT Act. Ajaramar Trading & Investment Pvt. Ltd. V/s State of Punjab (PVAT-Tri.

) Section 51 of PVAT Act, 2005. (1) First argument raised on behalf of the Revenue that the vehicles were standing outside the godown/premises of Radha Krishna Flour Mills, Kallar Khera (Ferozepur) runs counter to the observations rendered by DETC who says in his order that the vehicles in this case were detained when the goods were being unloaded, so the detention itself was illegal as the vehicles were not in transit. DETC(A) in his order has categorically observed that Godown is situated approximately 2 km before I.C.C. Kallar Khera. If it was so, it could be hardly expected of the incharge/drivers of the vehicles to report the matter at the I.C.C. If the agreement dated 15.07.2009 is neither on any stamp paper nor any of the signatories thereto has put any date, the validity thereof could have been disputed only by either party. The revenue in no manner is a privity to this agreement. If the department did entertain any doubt with regards to its genuineness for any purpose, the best course was to collect evidence in this behalf. The job of officer incharge of the check barrier is to ascertain whether the prescribed documents accompanied the vehicle and the goods which in turn are liable to tax under the Act. Anything else he does would be without jurisdiction and liable to be quashed. In view of Rule 11 of Punjab Value Added Tax Rules, 2005 an application for amendment of registration granted under the Act, has to be made in Form VAT5 within a period of 30 days from the occurrence of the event necessitating such amendment. There is nothing on the record to show that such an application was moved beyond this period. The DETC(A) in his impugned order has observed that Moreover the dealer has also informed the Department on 27.08.2009 about Godown stipulated period of 30 days after sanction of Godown by NBHC authority on 01.08.2009. This observation negates the contention raised in this behalf by the State. The argument that the transaction has not been routed by the firm from its Punjab account and the amount has been transferred from Lajpat Nagar, Delhi branch of the bank located outside the state is also untenable for the reason that there is no bar for the dealer for doing so. May be that the funds in the account of the appellant with the Delhi branch were more than that lying in his account with the bank in Punjab. Thus the arguments in this regard does not hold water. It has been further alleged that the employee of the firm who was present at the godown was having cash of Rs. 4,00,000/- for the withdrawal of which no account has been produced. It is beyond comprehension as to under which provision of law the account of this cash withdrawal has been asked for.

(2) (3)

(4)

(5)

(6)

(7)

(8)

Non-reporting at the I.C.C. barrier is not a ground to levy the penalty when all the documents are complete in all respects and are in possession of the person in charge of the vehicle. In the present case, the goods were accompanying proper and genuine documents, complete in respects.

India Pvt Ltd versus Deputy Excise and Taxation Commissioner Jallandhar cum Joint Director (Invg.) Jallandhar Punjab and another(2012)41 PHT 309 (P&H). Section 51(7) Attempt to evade tax-penalty-Ingenuine documents. Penalty without establishing malafide intention whether sustainable The Tribunal after appreciating the material on record had arrived at the conclusion that there was an attempt at evasion of tax on the part of the appellant as M/s Snowman frozen Foods Limited was having its business at Pind Ganna, Phillaur, Distt Jalandhar whereas the destination mentioned in the documents was M/s Modern Refractories, village Ikoloha Distt. Ludhiana which were reported by the driver of the vehicle at the ICC. The Tribunal further noticed that there was no mention of place of start of any industry between the appellant and M/s Snowman Frozen Foods Limited in the agreement and addition of additional place of business in the registration of M/s Snowman Frozen Foods Limited at Village Ikoloha was made much after the interception of the goods by the Department. The documents also revealed that the goods were in the name of M/s Modern Refractories and name of M/s Snowman Frozen Foods Limited was nowhere depicted in the same. Under the circumstances, the documents could not be held to be genuine and the penalty had been rightly imposed under section 51(7) (b) of the Act. The findings recorded by the Tribunal having not been shown to be erroneous or perverse in any manner, no question of law much less substantial question of law arises in this appeal. (para 5,6) Thermo King Section 51(7) Attempt to evade tax Cross-examination of the appellants in relation to their solemn affirmations made in the affidavit-Essential Appellant while traveling in Jammu Tavi searched and found with 380 grams of Gold without any documents in their possession Appellant in submitted affidavit that this was for their personal use and that they were not in trade of Gold Departmental authorities without cross examining the appellant about their affidavit and solemn affirmation levied them to penalty Tribunal quoting the words of Lord Hewart held that it is not merely of some importance, but is of fundamental importance that justice should not only be done, by should manifestly and un-doubtedly be seen to be done. Whether or not these goods are meant for trade, could have been ascertained only if the appellant had been crossexamined with respect to their solemn affirmations enshrined in their said affidavit. It accordingly set aside the orders passed by both the authorities below and remitted

Guljag Industries V/s C.T.O Rajasthan (2007) 30 PHT 300 (SC)

Attempt to evade tax u/s 31(8) of HVAT ActBefore levying the penalty for an attempt to evade tax, it is necessary to establish that there was an intention to attempt to evade the payment tax is not applicable under the provisions of HVAT Act since has been distinguished by this Tribunal in case Hydrabad Industries Ltd. Faridabad V/s State of Haryana reported as VSTI 2010-C-737 (HTT) Jindal Rolling Mills, Hissar V/s State of Haryana (2012) 41 PHT 22 (HTT) Jindal Rolling Mills, Hissar V/s State of Haryana (2012) 41 PHT 22 (HTT) Penalty u/s 31(8) of the Act cannot be merely imposed that certain important column of ST-38 (inward) during the movement of goods were left blank, establishment of intention to evade the payment of tax is also equally essential. Agrimas Chemicals Ltd. Sirsa Road, Hissar V/s State of Haryana (2012) 41 PHT 44 (HTT) Attempt of evade Tax The Taxing Authority i.e Checking Officer has no jurisdiction and powers to impose any penalty u/s 31(8) of the HVAT Act 2003 merely on the ground of factum of taxability, when there is no doubt about the genuineness if the documents accompanying the goods and there is no variation in the nature of quantity of the goods as per the documents. Attempt to evade Tax Agrimas Chemicals Ltd. Sirsa Road, Hissar V/s State of Haryana (2012) 41 PHT 44 (HTT) Where relevant documents are duly produced but a bona fide plea against taxability is raised and there is neither misdeclaration nor concealment, exercise of power of imposing penalty at the check-post on the ground of attempt to evade the payment of tax may not be called for. Luminous Power Technologies (p) Ltd. Baddi (HP) V/s State of Haryana (2012) 41 PHT 49 (HTT-FB) The penalty has been levied on the ground that the M.R.P as written on the goods is mich more than the value as per stock transfer, invoice accompany with the goods-whether correct-held, no In view of the judgment reported as (2007) 30 PHT 509 (P&H), it is not the M.R.P which is taken into consideration but the sale price. Luminous Power Technologies (p) Ltd. Baddi (HP) V/s State of Haryana (2012) 41 PHT 49 (HTT-FB) Attempt to evade Tax

When the dealer disputes during the roadside checking that the goods are meant for sale on consignment basis and further these are only basic price and not the selling price, the inquiry in such circumstances is pre-requisite. Penalty levied for non consideration of such matters is liable to be deleted. K.B Enterprises (HP) V/s Incharge Flying Squad (CZ) Una. (2012) 41 PHT 60 (HPTT) Attempt to evade tax Procedural LapsesAppellant dealer while carrying goods is required to carrying three copies of the invoice u/s 30(16) of the HPVAT Act whereas he was found carrying only single copy alongwith the consignment I am of the opinion that there has been a procedural lapse on the part of the appellant as be was supposed to carry with him the bills in triplicate. It is not the contention of the law that there has to be an attempt to evade tax put the law has to be obeyed in letter and spirit. The bills in triplicate needs to be covered along with the goods and should also be available during transit. K.B Enterprises (HP) V/s Incharge Flying Squad (CZ) Una. (2012) 41 PHT 60 (HPTT) Pre-deposit- The appellant paid tax to the tune of Rs.8,30,57,964/- and is also entitled to input tax credit of Rs. 7,18,35,695/- Insisting for deposit of 25% of the demand for hearing the appeal on merits is not justified. Punjab State Civil Supply Corporation Ltd., Gurdaspur Tin No 03691024236 v State of Punjab Attempt to evade Tax It is not the contention of the law that there has to be an attempt to evade tax but the law has to be obeyed in letter and spirit. The bills in triplicate needs to be covered along with the goods and should also be available during transit. Attempt to evade Tax-Notice-Before a penalty for an attempt to evade tax u/s is levied, the law requires that the dealer must come to know the sub-clause under which he is being proceed and penalized. Requirement of mentioning the clause of the section under which the notice is being sent-Essential M/s Parduman kumar Amit Kumar, Bazar Luharan, Amritsar v State of Punjab..(2012)41 PHT 124(PVT) Canteen sales under entry 51, Sch. B of HVAT Act,2003-Canteen sales held come in the ambit of taxation Eatables and drinks sold by the appeallant dealer through his canteens held are taxable. M/s Hero Honda Motors Limited, Gurgaon v State of Harayana..(2012) 41 PHT 137(HTT). Attempt to evade tax- Imposing penalty on the mere admission of the driver without considering the documents on record before levying penalty is not proper. The Tribunal must examine the documents and record a finding that any attempt to evade tax is made out. Steel India and Co., G.T.Road, Mandi Gobindgarh v State of Punjab. Attempt to evade tax- The oversights on the part of the driver in not submitting GRNo. Gy. 61 does not spell out a case of evasion of tax or an attempt to evade tax, when the

payment is made through banking channels and the transaction is accounted for. Vardhman Industries Ltd., G.T.Road, Sahnewal, Ludhiana-141120 Tin: 0361053731 v The State of Punjab. Attempt to evade tax- For mere remissness or over-sight of the driver, mens-rea to evade tax cannot be attributed to the owner of goods, when the documents covering the transaction are proper, genuine and complete in all respects, Vardhman Industries Ltd., G.T.Road, Sahnewal, Ludhiana-141120 TIN : 03061053731 v The State of Punjab. Attempt to evade tax- Mere statement of the driver does not warrant imposition of penalty, when all the documents including the disputed goods receipt covering the goods under trasactions are with him. Vardhman Industries Ltd., G.T.Road, Sahnewal, Ludhiana141120 Tin: 03061053731 v State of Punjab Attempt to evade tax- Penalty on the mere statement of driver-Not imposable. Pandey Steel Industries, Gaushala Road, Mandi Gobindgarh v The State of Punjab. Attempt to evade tax- Intra State transaction- Penalty u/s 51(7) (b) not proper. Pandey Steel Industries, Gaushala Road, Mandi Gobindgarh v The State of Punjab. Attempt to evade tax- Non reporting at the I.C.C -Does not constitute violation of the provision of section 51 of the act 2005 of the act 2005 when the documents covering the transaction are proper and genuine and the transaction could have not been kept out of the account books, Pandey Steel Industries, Gaushala Road, Mandi Gobindgarh v The State of Punjab Attempt to evade tax- It is a case of voluntary reporting of goods while being imported into the state of Punjab. All the particulars required to be furnished under the Punjab Value Added Tax Act, 2005 were duly furnished by the appellant for examination and record by the ICC staff. Once the transaction is recorded at eh ICC there is no way in which the dealer could keep this transaction out of his account books. J.K. Fuel Solutions, 256Khurana Building, M.M. Malviya Road, Amritsar v The state of Punjab.. Attempt to evade tax- Inter state movement of goods- Here in this case, the movement of goods taken palace from Gujarat State. That being so, no tax could be said to be due under the PVAT Act while the goods enter the State of Punjab. Once the documents produced by drivers of the vehicles are found in order, the rest of the issue, if any, could be decided only by the Assessing Authority and not in summary proceeding at road side. J.K. fuel Solutions, 256-Khurana Building, M.M. Malviya Road Amritsar v The State of Punjab. Pre-deposit amount-Calculation of Total of tax, penalty and interest in section 62(5) of the Act whether includes the additional demand created, for hearing the appeal on meritsHeld, No-Amount of 25% to be deposited held is calculatable of the total amount of tax, interest and penalty which is imposed and not of the additional amount which is raised-So

far as Punjab Ordinance No.10 of 2011 dated 17th August, 2011 is concerned, the appeal having been adjudicated by the Tribunal on 11.11.2010, whereas Ordiance NO.10 of 2011 was promulgated w.e.f. 17.08.2011, prospectively the State cannot derice any benefit there from. State of Punjab and another v M/s K.C. Motors (2012) 41 PHT 384 (P&H). Pre-deposit- In the case of an exempted unit i.e. unit granted exemption not having yet availed of the total amount for which the exemption was granted and the balance yet to be availed is more than 25% of the impugned demand, the pre condition of the deposit of that amount need not be insisted upon as the assessee has yet the period of exemption to avail of and the total amount for which exemption had been granted has not exhausted. Kochar Sung-Up Acrylic Pvt. Ltd, Tarn Taran Road, Amritsar-II Vs State of Punjab (2012) 41 PHT 428 (PVT). Limitation -Section 63- Appeal-Limitation Appeal against the order passed by AETCcum- Designated Officer on 30.03.2010 creating an additional demand of Rs.13,765/- for the assessment year 2005-06 before the Tribunal after having been dismissed before the first appellate authority. The order of assessment set aside by the Tribunal being void on account of having been passed after the expiry of three years prescribed for framing the assessment under the Punjab VAT Act, 2005, Chaudhari Enterprises, Bathinda, District Bathinda V State of Punjab (2012) 41 PHT 415. Section 63- Appeal decided by the first appellate authority without examining the matter involved in the case levying penalty u/s 51(7)(b) and confirmed the order of the incharge ICC. The Tribune on further appeal remitted the matter/the case to the first appellate authority to pass fresh order on merits by providing proper opportunity of hearing to the appellant. Teak Antique, 15, Dilawari Street, Putlighar, Amritsar Vs State of Punjab (2012) 41 PHT 416(PVT).

Date: 09/06/2012 Pre-deposit- When not essential- Law requires the deposit of 25 per cent of the disputed demand for hearing the appeal on merits. Where the financial position of the assessee is weak and is not even improved for depositing of disputed amount of hearing the appeal, appeal can be heard and decided on merits. Alcatel India Limited, Gurgaon v State of Haryana(2012) 42 PHT 52(HTT-FMT) Revision after the expiry of the period of limitation. First Provsion to section 34(1) of the HVAT Act, 2003 revised even after the limitation period of three years .The first

exception is when there is a change of law with retrospective effect, the second exception is when there is a decision of the Tribunal in a similar case and the third exception is the law declared by High court or the Supreme court, Alcatel India Limited Gurgaon v State of Haryana..(2012)42PHT 107 (HTT-FMT) Section 51(7)(b)- Attempt to evade tax-Penalty Assessee is a dealer in Shesham Wood on 17.10.2005, vehicle carrying timber reported at ICC Kallar Khera Bill and G.R. produced and record in computer. It is a case of voluntary reporting of the transaction at the ICC staff for recording and the transaction is recorded at the ICC, there is no way in which the appellant could keep this transaction out of his accounts books. The penalty has been imposed without mentioning any defect in the covering documents. No sample of the wood detained was kept by Penalizing Officer. No opinion of any expert was sought as to which wood was being exported out of Punjab. The Detainning Offcier has also not himself declared as to what was the nature or the descriptinon of the wood detained by him. The penalty had been imposed merely on sum\rmises without proving anything on file. In fact the valuation of goods being sold by the appeallant has been accepted as such by the Penalizing Officer. The Penalty of Ts.25400/- imposed vide order dated 03.11.2005 us setaside. The order of the Joint Director (Investigation) cum Deputy Excise and Taxation Commissioner, Ferozepur Division, H.Q. at the Bathinda dated 13.02.2008 are also setaside. The appeal is accepted. Sachdeva Wood Corner, O/s Gate Hkima, Village Angarh, Amritsar v State of Punjab.(2012) 42 PHT 84(PVT) Section 51(7)(b)- Attempt to evade tax- Ingenuine documents- Vechicle transporting M.S. Cutting from Mandi Gobindgarh to Ludhiana intercepted-Vat invoice 83 suspected to be not genuine Statement of the driver recorded-Account books for examination also could not be submitted by the consignor or the consignee-Penalty levied which is being challenged in this appeal-Held, penalty has been imposed relying preliminarily on the statement of the driver. Detailed inquiry needs to be conducted in this case by issuing notice to the consignor or consignee of M/s Nikel Steel Industries, Mandi Gobindgarh and examine the accounts books. The Counsel for the appeallant has assured the court that he is ready to produce his account books before the Penalizing Officer in case and opportunity afforded to him. He had submitted a copy of return by appeallant in the department. In the light of the circumstatnces, I feel that it would be a fit case to be remanded to the Assistant Excise and Taxation Commissioner, Mobile wing, Ludhiana for conducting detailed inquiry in the case by issuing notice to the consignor, the consignee or M/s Nikel Steel Industries, Mandi Gobindgarh and pass denovo orders. Penalty of Rs.2,21,231/- u/s 51(7) (b) of Vat Act, 2005 imosed with the order of Assistant Assistant Excise and Taxation Commissioner(A) Ludhiana Division dated 13.06.2011 are also set aside. M.K. Enterprises, Central Market, Ludhiana v State of Punjab(2012) 42PHT 96(PVT) Section 51(7)(b)- Attempt to evade tax- If the incharge of vehicle or driver hands over the Transit Pass, while taking the goods outside the State, then there would be no liablility at all. It is only when he does not deliver the transit pass of the exit check post as undertaken by him that the question of raising a presumption against him would arise. In

the present one, admittedly, the transit slip was ICC barrier Madhopur-Officer on duty found that transit slip vide which the transaction was covered had crossed the stipulated period of 48 hours and also it was noticed that the goods did not appear to be the same as mentioned in the bill/GR accompanying the tanker-After due inquiry, assessee was levied with penalty which is being contested in this appeal. In this case, we find that the element of Punjab tax is not involved and the Punjab State only is a transit state or intervening state-There is no any provision in the Act, 2005 authorizing the Detaining Officer or the AETC to draw samples of the goods in transit. The test report only says that this L.D.O is not according to their specification. It nowhere says that this commodity is not LDO. The Department has also not claimed this commodity to be other than LDO. The commodity being of inferior quality may have not been fulfilling the specifications as prescribed by I.O.C.L. for L.D.O. If the goods are sub standard or of inferior quality, then only the purchaser can object to it and not the Taxation Department. In Such, circumstances, it cannot be said that either the documents were not genuine or there was an attempt to evade tax. As a sequel of the above discussion, this appeal is accepted and the impugned orders being patently bad are set aside, accepting the appeal. (A Krishna Petrochem, Delhi v State of Punjab(2012) 42PHT 99(PVT) Section 51(7)(b)- Attempt to evade tax- Maintenance of the duplicate copy of the G.Rnot mandatory- Penalty in this case has been imposed on the ground that the carbon copy of G.R differs from the original copy of the G.R detained-Rule 54 and 67 of PVAT Rules . 2005, no where make it mandatory for the transport company to maintain a duplicate copy of the G.R Even otherwise no notice in the present case was issued to the transport company to explain his position. Penalty has been imposed without establishing attempt to evade the payment of tax. Penalty of 181068/- u/s 51(7)(b) of Vat Act,2005 imposed vide orders of AETC Mobile wing and DETC(A) are liable to be set aside. The Appeal is accepted (B) Patiala Pipes Pvt.Ltd Kathel Road, Patiala v The State of Punjab..(2012)42 PHT 104(PVT) Section 51(12)- Attempt to evade tax- Tax at Vat rate by barrier authorities when chargeable-Tax at Vat rate is leviable only if a transporter fails to give information about the consignee of the goods, where as in the case at hand, the addresses of both i.e. consignor or consignee have been reflected in the invoice as well as G.R penalty leived not sustainable.(B) Krishna Petrochem, Delhi V State of Punjab..(2012) 42 PHT 99 (PVT) Punjab Value Added Tax Rule, 2005 Rule 67-Maintainence of carbon copy of the GR by transport company-Not essential- Penalty in this case has been imposed on the ground that the carbon copy of G.R. differs from the original copy of the G.R. detained-Rule 54 and 67 of PVAT Rules, 2005 no where it mandatory for the transport company to maintain a duplicate copy or a carbon copy of the G.R.(A) Patiala Pipes Pvt. Ltd., Kaithal Road Patiala v The State of Punjab.(2012)42 PHT 104(PVT) RATE OF TAX

Department obligations regarding Rate of tax- Every business enterprise should know the tax rate applicable to its product, and the same cannot be left to different interpretations at different Tax authorities must provide a clarification to the product instead of remanding the case to the Assessing Authority.(B) Fortuna Implex Pvt.Ltd., Opp. Sanskrit College, Super College, Super Market Complex, The Mall Solan, District Solan (HP) v Addl. Execise and Taxation Commissioner-cum-Appellate Authority (SZ), Block No.29, SDA Complex, Kasumpti, shimla.(2012) 42PHT 70 (HPTT)