ASSISTANT COMMERCIAL TAXES OFFICER Vs. INSECTICIDES (INDIA) LIMITED

JUDGEMENT

(1.) A challenge has been laid in this revision petition to the order dated April 29, 2010 passed by the Rajasthan Tax Board, Ajmer upholding the order dated June 18, 2009 passed by the Deputy Commissioner (Appeals), Commercial Tax, Alwar, whereunder the Deputy Commissioner had set aside the order dated August 8, 2008, passed by the assessing authority levying penalty under section 76(6) of the Rajasthan Value Added Tax Act, 2003 (hereinafter "the Act of 2003") on the respondent -assessee. The facts of the case are that the vehicle No. RJ -2G -6383 was checked at RIICO Industrial Area, Bhiwadi, and it was found that the goods in transit were consigned from Dehradun in the State of Uttranchal to Chaupanki in District Alwar, State of Rajasthan and the goods were accompanied by the requisite bills and challan. The assessing officer however found that goods were not accompanied by form VAT -47 which was a necessary document required to accompany the goods in transits entailing a violation of section 76(2)(b) of the Act of 2003 read with rule 53. In these circumstances, the assessing authority issued a notice to the respondent -assessee. The respondent -assessee submitted reply to the show -cause notice enclosing therewith form VAT -47. It was stated in the reply that the form was not sent in accompaniment of the goods in transit owing to the driver's mistake. The assessing authority however dealt with reply of the respondent -assessee cursorily and merely in view of the fact that the aforesaid form was not found in accompaniment of the goods in transit at the time of checking proceeded to impose penalty under section 76(6) of the Act of 2003 on the respondent -assessee. The assessing authority was of the view that the case set up by the respondent -assessee in reply to the show -cause notice was an after -thought in view of the fact that at the time of checking and taking of the statement of driver of vehicle in movement it had not been stated by the driver that the declaration form VAT -47 had been left back by him owing to an error.

(2.) THE order dated August 8, 2008 passed by the assessing authority was challenged in appeal before the Deputy Commissioner (Appeals) under section 82 of the Act of 2003 by the respondent -assessee whereupon vide order dated June 18, 2009, the appeal was allowed on the ground that in the overall facts of the case, the accompaniment of requisite documentation with the goods in transit indicated the authenticity and the submission of form VAT -47 along with the reply to the show -cause notice indicated the bona fide of the transaction and negatived the presence of any mens rea of evasion of tax to warrant imposition of penalty. The said order was put to challenge by the Revenue before the Rajasthan Tax Board. The Revenue's appeal to the Tax Board also came to be dismissed vide order dated April 29, 2010.

(3.) ON the facts on record, it is not in dispute that the documents along with the goods in transit were not found to be forged or unauthentic in the course of any inquiry by the assessing authority. Further the lacuna in the documentation as required under section 76(2)(b) of the Act of 2003 was also fulfilled by the respondent -assessee on the issue of show -cause notice whereupon declaration in form VAT -47 was filed along with the reply. The honourable Supreme Court in the case of State of Rajasthan v. D.P. Metals : [2001] 124 STC 611 (SC) : [2002] 1 SCC 279, has held that where on issue of show -cause notice, the documents statutorily required if found short were to be filed along with the reply, it would be indicative of bona fides and compliant with law and would not warrant the levy of penalty. The facts of the present case are on all fours with the judgment of the honourable Supreme Court referred to above.