MEHTA AND SONS Vs. COMMERCIAL TAXES OFFICER UDAIPUR

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 27th September, 1986, passed by the Rajasthan Sales Tax Tribunal, whereby the learned Member of the Tribunal dismissed the appeal filed by the assessee.

(2.) BRIEF facts of the case are that the Assistant Commercial Taxes Officer. Ward I, Anti Evasion, Udaipur, visited the shop of the petitioner for verification of goods imported by the assessee from M/s. Seema Traders vide invoice No. 732 dated 16th December, 1981, which were carried by Northern Roadways, Delhi, through R. R. No. 9858 dated 16th December, 1981. On detailed survey of the stock and examination of account books it was found that goods never came to his shop on that date. As per the statement of the proprietor of the assessee-firm, Shri Surendra Singh, goods in question were never imported by him. He also stated that someone-else must have used the petitioner's name for importing goods, and he or assessee-firm had not taken delivery of the said goods. The respondent issued notice under section 22 (1) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act") for the enquiry of the alleged goods. The petitioner complied with the said notice. The respondent-department recorded the statement of Gurubachan Singh, partner of the transport firm, who has stated that it was not possible for him to tell as to who received the goods transported vide R. R. No. 9858. He further stated that recorded of the delivery of goods at the place of destination remains with the respective truck drivers. Thereafter, the respondent issued notice under section 10 (2) read with section 16 (1) (e) and section 22 (6) of the Act for the date 14th December, 1982. In compliance of the notice, Surendra Singh, proprietor, filed an affidavit on December 31, 1982 said that he has not brought any rubber foam from the said firm througha R. R. No. 9858 dated 16th December, 1981. Respondent vide its assessment order dated 21st February, 1983 came to the conclusion that the assessee imported and received the goods in question from M/s. Seema Traders and they were not accounted in the books as such evaded tax on sale of such goods and accordingly, on estimated sale price of such goods of Rs. 45,000 tax at 10 per cent was imposed, penalty of Rs. 9,000 under section 16 (1) (e) and under section 22 (6) (b) penalty of Rs. 1,148 was imposed and penalty was levied. Against the assessment order, the assessee preferred appeal before the Deputy Commissioner (Appeals) who partly allowed the appeal vide his order dated 30th May, 1983, observing that the delivery of the goods in question in the hands of the assessee has not been proved and therefore tax and penalty cannot be levied on mere presumption, and directed that the assessing authority may however further enquire into the matter from the driver of the vehicle concerned. Accordingly the tax levied on Sales of Rs. 45,000 and penalty of Rs. 9,000 under section 16 (1) (e) was set aside. The penalty under section 22 (6) (b) and interest under section 11-B were also reduced. The Deputy Commissioner (Appeals) remanded the matter to the assessing authority for re-examination. The respondent again passed assessment order on 6th July, 1985, after remand and accordingly tax as well as penalty of Rs. 4,500 and Rs. 9,000, respectively, were levied. Aggrieved by this order the assessee preferred appeal before the appellate authority who vide order dated 23rd April, 1986 dismissed the appeal on the ground that octroi has been deposited by the assessee. The petitioner preferred second appeal before the Tribunal, which was rejected on 27th September, 1986. Hence this revision.