Asstt. Commercial Taxes Officer vs Pukhraj Jain

Vineet Kothari, J.—Heard the learned Counsels for the parties.

This revision petition is directed against the order of the Tax Board dated 20.3.2002 whereby the Tax Board dismissed the appeal of the Revenue upholding the order of the Dy. Commissioner (Appeals) and both the Appellate Authorities have concurrently held that the penalty u/s 78(5) of the RST Act, 1994 could not be imposed on the respondent-assessee, who was only handling agent of the cultivators, transporting wool in bags to two different registered dealers. The Authority concerned on the suspicion that the goods were belonging to the respondent-assessee, the handling agent and they were found at the time of checking only with bitty of M/s Arihant Transport Company and therefore, since the relevant documents, namely, sale invoice, besides bilty were not accompanying the goods in question, he imposed the said penalty. The first appellate Authority as well as the Tax Board held that said penalty could not be imposed against the respondent-assessee, who was merely a handing agent and since no enquiry was held by the AA from the consignee the registered dealers of goods in question, therefore, the penalty could not be sustained.

The learned Counsel for the Revenue argued that since the goods in question belonged to the respondent-assessee only and the names of "Rebari" (cultivators of wool) was mentioned in the bilty to avoid tax.

Having considered the rival submissions made at the Bar and upon perusal of the relevant bilties produced by the learned Counsel for the Assessee, this Court is of the opinion that the learned Assessing Authority failed to hold relevant enquiry from the consignor or the registered dealer of the goods in question, which was shown in the relevant bilties found at the time of checking. Since the cultivators were admittedly unregistered dealers under the Sales Tax laws, the intention to avoid or evade tax could be ascertained only after holding enquiry with the consignee, but no such enquiry was held and there was no other cogent material also before the AA to hold that the goods in question belonged to the respondent-assessee - the handling agent. This Court finds no error in the concurrent findings of fact arrived at by the learned both the appellate authority that the penalty in question could not be sustained against such handing agent. Thus, there is no force in the aforesaid revision petition and the same is accordingly dismissed. No order as to costs.