ASST COMMERCIAL TAXES OFFICER Vs. KUMAWAT UDHYOG

JUDGEMENT

(1.) THE only point involved in the present revision petition is whether in the facts and circumstances of the case, Rajasthan Sales Tax Tribunal was justified in setting aside the penalty levied under section 16 (1) (e) of the Act. THE learned Government Advocate has contended that during the assessment year 1985-86 the assessee was effecting the sales of bricks and according to the terms of the contract the supplies of bricks was f. o. r. destination Bandanwara. THE supplies were not f. o. r. destination, buyer's place and, therefore, the freight charges from Bandanwara to destination will form part of the sales price. THE Sales Tax Tribunal after considering the matter came to the conclusion that the freight will form part of the sale price, but in respect of levy of penalty under section 16 (1) (e) it was held that the action on the assessee was bonafide. THE entire transactions were recorded in the books of account and no facts were concealed. THEre was no cutting or overwriting in the books of account or any other description in the books and the documents and it was a matter of interpretation with regard to the liability of tax. THE action of the assessee in not disclosing the freight in the return was considered to be bona fide and reliance was placed on the honourable Supreme Court decision in Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax [1980] 45 STC 197 and the decision of this Court in Vijai Hosiery Mills v. State of Rajasthan [1980] 45 STC 345 and other decisions.

(2.) I have gone through the record. The provisions of section 16 (1) (e) are applicable only when an assessee has concealed any particulars from any return furnished by him or has deliberately furnished inaccurate particulars therein. The word "concealed" implies the mental element of the assessee and simply because the assessment has been made by the assessing authority at a different figure will not give him the jurisdiction to levy the penalty. Prima facie an entry in the books of account disclosing the correct nature of the transaction is sufficient to come to the conclusion that no offence has been committed unless the assessing authority proves by some other evidence, apart from the finding given in the assessment order that the non-disclosure in the return is because of the deliberate action on the part of the assessee to evade the tax. It has been the consistent view of this Court that if an entry is existing in the books of account and the matter relates only to the interpretation about the nature of the transaction or non-taxability on account of the interpretation of the provision of law, then the authorities under the Act would not be justified in levying the penalty. In the present case the finding which has been given by the Tribunal while upholding the tax is that the entries were existing in the books of account and the action was bona fide and the matter stood covered by the judgment of the honourable Supreme Court reported in the Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax [1980] 45 STC 197. I do not find any justification to interfere in the revision which is dismissed. No order as to costs. Petition dismissed. .