M/s RB Mutha and Co. vs ACTO, Anti Evasion-II, Bikaner

Hon''ble Dr. Justice Vineet Kothari

The assessee is aggrieved by the order of the Tax Board dtd.25.3.2009, whereby the Tax Board setting aside the order of the Dy. Commissioner (Appeals) dtd.19.10.2004 in favor of the assessee allowed the Revenue''s appeal and restored the penalty of Rs. 46,500/- u/s 78(5) of the RST Act, 1995 on the respondent - assessee.

Aggrieved by the order of Tax Board, the assessee has filed the present revision petition before this Court.

The learned counsel for the petitioner, Mr. Sanjeev Johri, submitted that at the time of checking of the goods in transit on 25.1.2004, 200 tins of oil sold by the assessee to one M/s Raj Trading Company of Sri Ganganagar was found to be accompanied with bilty of truck No. RJ31-G-5552 along with Bill No. 17155 of 24.1.2004 of petitioner - assessee M/s R.B. Mutha and company, whereas the actual truck carrying the said goods was registered at truck No. RJ- 31/5312 and therefore, upon the said discrepancy in the documents accompanying the goods in transit, the assessing authority invoked the provisions of Section 78(5) of the Act and imposed aforesaid penalty. He submitted that explanation of the assessee before the first appellate authority was that these very goods, namely, 200 tins of Fortune'' branch oil was purchased by the petitioner - assessee from local registered dealer M/s Hari Om Company, Jodhpur under his Bill No. 21522 dtd.24.1.2004 which were transported to the present petitioner assessee in truck No. RJ-31/5312 and the same truck along with assessee''s Bill No. 17155 dtd.24.1.2004 was sold to M/s Raj Trading Company, Sri Ganganagar, another registered dealer. However, due to bonafide mistake of concerned agent M/s Maheswari Brokers through its manager Sh. Manoj Gandhi, inadvertently name of purchaser was wrongly mentioned as M/s Raj Enterprises and truck number was wrongly mentioned as Truck No. RJ31-G/5552 in the said invoice No. 17155 dtd.24.1.2004 and accepting this bonafide mistake and explanation of the assessee, the learned Dy. Commissioner (Appeals) had quashed the penalty in question vide his order dtd.19.10.2004.

The learned counsel for the petitioner urged that the Tax Board is the final fact finding body. However, in second appeal, without adverting to this explanation and finding of learned Dy. Commissioner (Appeals), the Tax Board reversed the said findings in the aforesaid Revenue''s appeal and restored the penalty. He, therefore, submitted that the matte deserves to be remanded back to the learned Tax Board for deciding the appeal of the Revenue afresh after considering the aforesaid findings of Dy. Commissioner (appeals) and explanation of the petitioner - assessee.

The learned counsel for the Revenue, Mr. Lokesh Mathur however submitted that findings of facts arrived at by the learned Tax Board are final and no interference can be made in the present revisional jurisdiction of this Court.

Having heard the learned counsels, this Court is of the opinion that the matter deserves to be remanded back to the Tax Board. The explanation furnished by the assessee before the learned Dy. Commissioner (Appeals) appeared to be bonafide and was therefore, accepted by the learned Dy. Commissioner (Appeals). The sequence of dates of bills raised by the predecessor-in-title of goods of the petitioner -assessee, namely Hari Om Company and the Bill raised by the present petitioner - assessee appears to be in same sequence, both the Bills being of same date of 24.1.2004. The mention of wrong truck number and wrong mention of similar name of purchasing dealer could be a bonafide mistake also. The final fact finding body, namely, the Tax Board ought to have at least adverted to this material and explanation of the petitioner - assessee and for the given reasons of course, it could reverse the findings of the learned Dy. Commissioner (Appeals), but without adverting to this material and findings, the order of the Tax Board restoring the penalty, becomes foundation-less order.

Consequently, this Court is of the opinion that the matter deserves to be remanded back to the learned Tax Board.

Accordingly, this revision petition is allowed and setting aside the order of the Tax Board dtd.25.3.2009, the matter is restored back to the Tax Board, Ajmer for decision afresh in accordance with law. No order as to costs.