Assistant Commercial Taxes Officer vs Jeet Iron Traders Bharatpur

J.K. Ranka, J.—This revision petition has been filed by the petitioner department, u/s 86 of the Rajasthan Sales Tax Act, 1994 (In short ''The Act'') against the order dated 30.7.2007 passed by the Rajasthan Tax Board, Ajmer (in short ''The Board'') in Appeal No. 527/2006 whereby the Tax Board dismissed the appeal filed by the petitioner department and affirmed the order passed by the learned Deputy Commissioner (Appeals), Bharatpur (In short ''The DC(A)), who vide order dated 18.5.2005 deleted the penalty amounting to Rs. 42,000/- imposed by the learned Assistant Commercial Taxes Officer, Flying Squad, Bharatpur, vide order dated 5.4.2001. The brief facts of the case are that on 5.4.2001 a vehicle bearing No. HR-38-D-3163 was intercepted and checked near Bharatpur, which was containing M.S. Scrap. On interrogation, the driver of the vehicle produced challan No. 01 dated 4.4.2001 of Gupta and Gupta Company, Agra, Bilty No. 137 dated 4.4.2001 belonging to Shyamji Roadways, Hathras Road, Agra and declaration Form No. ST-18-A bearing No. 27681/16. The goods were being transmitted from Agra to Bharatpur. However, on perusal of the documents, it was found that in some columns of the declaration form, there were cuttings/overwritings with regard to price of the goods, date and number of vehicle and the name of the transport company. On finding such cuttings in the declaration form, the ACTO prima facie came to the conclusion that this mistake was committed by the respondent-assessee with the intention of tax evasion. Therefore, a notice was given to the respondent-assessee. The respondent-assessee filed reply to the notice, it was considered by the learned AO and being dis-satisfied and after considering the price of the goods to be Rs. 1,40,000/- imposed penalty @ 30% at Rs. 42,000/-.

Dissatisfied with the order passed by the ACTO the respondent-assessee preferred an appeal before the Deputy Commissioner (Appeals), Bharatpur, (In short (DC(A)), who vide order dated 18.5.2005 deleted the penalty amounting to Rs. 42,000/- imposed by the learned Assistant Commercial Taxes Officer, Flying Squad, Bharatpur, vide order dated 5.4.2001 and accepted the appeal filed by the respondent-assessee.

Being dis-satisfied with the order of DC(A), the petitioner-department, carried the matter in appeal before the Tax Board, who vide order dated 30.7.2007 rejected the appeal of the petitioner department by affirming the order passed by the learned DC(A), Bharatpur, and came to the conclusion and decided the issue with reference to the fact that penalty was imposed prior to 22.3.2002 and since the Full Bench of the Tax Board, Ajmer in the case of Asstt. Commercial Taxes Officer v. Bajrang Timber Mart, Ladnu, vide order dated 22.12.2005 held that penalty could not be imposed upon the owner and only on this basis, the penalty was deleted.

Hence, this revision petition.

Ms. Tanvi Sahai, learned counsel for the petitioner department submitted that there were cuttings and over-writings in the declaration form, shows wrong intention of the respondent-assessee as declaration form was reused and it is a clear cut case of tax evasion. She further submitted that the particulars of the declaration form ought to have been filled in without cuttings/over-writings and it is mandatory. She further submitted that it is a very strange case, wherein several cuttings were made and it is a clear cut case of violation of provisions of Rule 53 and the ACTO was quite justified in imposing the penalty. She relied upon the case of Guljag Industries Vs. Commercial Taxes Officer, and submitted that the Hon''ble Apex Court in that case, held that even if declaration form is found to be blank, penalty could be levied, whereas in this case, it transpires that the form was re-used and as per the Hon''ble Apex Court, if it transpires that the form is liable to be re-used then it would be a nullity and such a declaration form was non est. She further submitted that by the judgment of the Hon''ble Apex Court in the case of Assistant Commercial Taxes Officer Vs. Bajaj Electricals Ltd., the order of Full Bench of Tax Board in the case of Bajrang Timber Mart (supra), stands reversed. Lastly, she submitted that the penalty was rightly imposed and wrongly deleted by the appellate authorities.

Despite service of notice, no-one puts in appearance on behalf of the respondent-assessee.

I have considered the arguments advanced by the learned counsel appearing on behalf of the petitioner-department and perused the impugned orders passed by the lower Appellate Authorities and after perusal of the impugned orders, I am fully convinced that the penalty has rightly been imposed by the learned ACTO and both the lower Appellate Authorities were not justified in deleting the penalty as the Hon''ble Apex Court clearly speaks about the fact that if there is a blank declaration form, or material particulars have been left blank then there is every apprehension that it could be reused and in such case, penalty could be imposed. Here in this case, there are over-writings and cuttings in the columns of the declaration form and in material particulars and the learned ACTO has rightly come to the conclusion that the form was re-used and which has been the view of the Hon''ble Apex Court in the case of Guljag Industries (supra). Therefore, in the light of the aforesaid judgment of the Apex Court in the case of Guljag Industries (supra), the said judgment in my view, is squarely applicable to the facts and circumstances of the present case as the apprehension of the ACTO that the form could be re-used has been found to be correct. In the present case, on perusal of the order, it is found that there are cuttings and over-writings against the columns of value of the goods and also cuttings in the other columns of the form as referred to above, therefore, the penalty has been rightly imposed. The Tax Board had summarily decided the issue by following the order of Full Bench of the Tax Board in the case of Bajrang Timber Mart (supra), which has already been reversed by the Hon''ble Apex Court, in the case of Bajaj Electricals Ltd. (supra).

In view of the aforesaid facts and circumstances of the case and in view of the aforesaid two Judgments of the Hon''ble Supreme Court, I am of the view, that the penalty in such a matter could be imposed and the ACTO was fully justified in imposing the penalty and the order of the ACTO Flying Squad, Bharatpur imposing penalty is sustained. The order passed by the two Appellate Authorities, are quashed, set-aside and reversed. Resultantly, the instant sales tax revision petition is allowed.