Assistant Commercial Tax Officer, Anti-Evasion-II vs Sikhar Chand Kailash Chand Jain and Another

Jainendra Kumar Ranka, J.—The instant sales tax revision petition arises out of the order dated September 19, 2007, passed by the Rajasthan Tax Board, Ajmer, who had sustained the order passed by the Deputy Commissioner (Appeals) who had deleted the penalty of Rs. 42,636 imposed on the respondent-assessee. Brief facts as emerging on the face of record are that on October 7, 1998, goods, namely, 106 bags of mustard were being transported in vehicle bearing No. RJ-23/G-0286. The said vehicle was checked by the officer at Kishangarh by-pass. On checking by the officer, the driver produced bilty No. 11598 dated October 6, 1998 of Dashmesh Golden Transport Company as also bilty No. 213 dated October 6, 1998 of M/s. Shikhar Kailash Chand Jain amounting to Rs. 2,13,179.55 and further enquiry was made from the driver and on account of some contradictions, issued show-cause notice to the driver. The representative of the assessee-respondent appeared before the assessing officer and it was conveyed to him that the goods have been purchased from agriculturist Shri Ganesh Lal through mandi samiti. He also produced cash book and stock register and submitted that the goods are duly recorded in the books of accounts and therefore, there is no justification for imposition of said penalty. However, the version of the representative of the respondent-assessee was disbelieved and penalty as aforesaid was imposed.

Dissatisfied with the said order, the assessee-respondent carried the matter in appeal before the Deputy Commissioner (Appeals) who vide order dated May 1, 1999 allowed the appeal and deleted the penalty. Being dissatisfied with the said deletion, the petitioner-Department carried the matter in appeal before the Tax Board who vide order dated September 19, 2007 dismissed the appeal preferred by the petitioner-Department. Hence, this revision petition.

Counsel for the petitioner, Shri R.B. Mathur, submitted that since there were contradictory submissions made by the driver as also the representative later on, therefore, the assessing officer was correct in levying the penalty. Since there was contradiction, therefore, correct conclusion was made by the assessing officer that the documents, bills, etc., are forged, fabricated and after-thought. He submitted that the Tax Board was unjustified in affirming the order passed by the Deputy Commissioner (Appeals) who deleted the penalty. He submitted that u/s 78(5), the penalty had rightly been imposed as the assessing officer was requested to decide the issue of penalty on the spot. Therefore, he pleaded that the penalty be restored and the order of the Tax Board be reversed.

Shri Vinod Kumar Jain, the learned counsel for the respondents, submitted that in this case, all necessary documents were produced even before the assessing officer (flying squad) and the goods were purchased through mandi samiti and was duly entered in the cash book as well as in the stock register, therefore, there was no occasion to disbelieve the version of the respondent. He further submitted that it was prima facie to be proved that the goods were recorded in the books of accounts and penalty cannot be imposed on mere conjectures, surmises on suspicions and doubts. He further pleaded that both the appellate authorities have come to a finding and it is basically a finding of fact and no question of law is involved. Thus, he pleaded for dismissing the present sales tax revision petition.

I have considered the arguments advanced by the learned counsel for the parties and have perused the orders including the impugned order. In my opinion, the Tax Board has come to the correct conclusion in this case and no penalty in law is leviable, particularly, in view of the fact that the goods were purchased from village lamba Hari Singh and it was being transmitted to a party of West Bengal and the respondent-assessee directed the goods to be filled in by the transport company from Kishangarh which was the nearest point and telephonic instructions were given as the respondent was at far of place. There is no discrepancy in the bill, about the vehicle number and it happened only because of telephonic communication and communication gap of hearing by the other side, otherwise all the papers have been found to be in order, which is also clear on perusal of the orders that the goods were purchased by the assessee-respondent from farmer Ganesh Lal on October 5, 1998 and even paid mandi tax amounting to Rs. 2919.24 which have duly been recorded in the cash book dated October 5, 1998 and also in the stock register maintained by the respondent-assessee. Therefore, when all these have been found to be duly recorded in the books as a fact, then in my view, the Tax Board has come to the correct conclusion that there was no intention of evasion of tax. In my view, when immediately all these things were produced before assessing officer on the spot, therefore, it cannot be said to be afterthought. The penalty u/s 78(5) cannot be imposed on mere conjectures and surmises on suspicions and doubts and on minor discrepancy which in the instant case was done by the assessing officer and rightly reversed by the Deputy Commissioner (Appeals) and further by the Tax Board.

Consequently, in the light of the above facts, the Tax Board as well as the Deputy Commissioner (Appeals) came to the correct conclusion. No illegality, impropriety or perversity has been noticed in the said order. It is essentially a finding of fact and no question of law is involved. Resultantly, the sales tax revision petition is devoid of merit and it is, hereby, dismissed. No costs.