Assistant Commercial Taxes Officer, Flying Squad, Bhiwadi (Alwar) vs Raghuveer Singh and Another

Narendra Kumar Jain, J.—Heard learned counsel for the petitioner. This revision petition is directed against the order dated January 31, 2008 passed by the Rajasthan Tax Board, Ajmer, whereby appeal filed by the petitioner was dismissed.

The assessing officer vide its order dated January 29, 2005 levied penalty u/s 78(10A) of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as, "the Act of 1994"), but on an appeal preferred on behalf of the assessee, the same was set aside by the Deputy Commissioner (Appeals), First, Commercial Tax, Jaipur vide order dated April 27, 2005. Order of the appellate authority was upheld by the Rajasthan Tax Board, Ajmer, while dismissing the appeal of the petitioner vide judgment dated January 31, 2008, which is under challenge in this revision petition preferred on behalf of the petitioner.

The submission of learned counsel for the petitioner is that although all the relevant documents including form ST 18A were available and produced for checking at the time of checking of the vehicle/goods, but since seal of check-post of Commercial Taxes Department of the State of Rajasthan was not there on the documents, therefore, there was no illegality in levying the penalty by the assessing officer. He, therefore, contended that the orders passed by both the appellate authorities may be set aside and order passed by the assessing officer may be restored.

I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by both the appellate authorities for setting aside the penalty order passed by the assessing officer.

The learned counsel for the petitioner does not dispute that all the required documents, as per provisions of section 78(2)(b) of the Act of 1994, were available and produced at the time of checking of vehicle/goods and required tax had already been paid by the assessee. So far as seal of check-post of the State of Rajasthan on the documents is concerned, the same is not a mandatory requirement, as per the provisions of section 78(2)(b) of the Act of 1994.

The Division Bench of this court in State of Rajasthan v. Tajiander Pal reported in [2003] 6 Tax Update, Part 3, Page No. 84, held that these provisions are not mandatory and are directory in nature. Division Bench of this court further held that if all the requisite documents are available at the time of checking of vehicle/goods, then intention to evade tax cannot be inferred. Both the appellate authorities have recorded a concurrent finding that there was no mens rea on the part of the assessee, as all the required documents were available and tax had already been paid by the assessee, therefore intention to evade tax cannot be inferred.

In these circumstances, I do not find any illegality in the concurrent finding recorded by both the appellate authorities, so as to interfere with the same in this revision petition. No question of law is involved in this revision petition and same is, accordingly, dismissed in limine.