C T O Vs. BIRDHICHAND BANSHIDHAR

JUDGEMENT

(1.) THE brief facts giving rise to the present revision petition are that during the assessment year 1983-84 (November 16, 1982 to November 4, 1983) the assessing authority found that the purchase of tax-paid goods is less in comparison to its sale and the sales of the taxable goods are less in comparison to the purchase. Besides that tax and interest, penalty under section 16 (1) (i) was also levied. Against this order, the assessee preferred an appeal to the Deputy Commissioner (Appeals), Kota, in which the levy of penalty under section 16 (1) (i) was set aside holding that the transactions of sale and purchase were recorded in the books of account and no case of concealment is made out and there was no mala fide intention and the assessing authority has not proved beyond shadow of doubt the offence. THE levy of tax and interest was upheld. Against this order the assessee preferred second appeal to the Sales Tax Tribunal and the assessing authority filed the cross-objection with regard to the setting aside of penalty imposed under section 16 (1) (i ). It was contended before the Sales Tax Tribunal that the purchase and sales were taken into consideration only up to April 6, 1983 and the effect of the full year has not been taken into consideration and as such it has resulted in double taxation. THE Tribunal came to the conclusion that there was no difference in the sale and purchase of tax-paid dhania, sarson at the end of the year, but there was a difference in the sales and purchase of tax-paid account on April 6, 1983. THE Tribunal also came to the conclusion that the figure of whole year can be taken into consideration and as such the figure as at the end of the year alone should be taken into consideration and the levy of tax and interest was set aside and the case was remanded to the assessing authority with the direction to verify the accounts of the assessee whether these transactions had resulted in double taxation. THE penalty was set aside under section 16 (1) (i) and it was held that there was no mens rea on the part of the assessee and the transactions of sale and purchase were duly recorded in the books of account.

(2.) ACCORDING to section 2 (s) of the Rajasthan Sales Act "taxable turnover" means that part of the turnover which remains after deducting these from the aggregate amount of the proceeds of sale of goods. . . . which have already been subjected to tax under this Act and thus goods which have been subjected to tax have been excluded. Section 3 which is the charging section creates the liability as under "subject to the provisions of this Act every dealer whose turnover in the previous year in respect of respect of sales or supply of goods exceed. . . . shall be liable to pay tax under this Act on his taxable turnover. " Section 5 of the Act read with rule 15 of the Rajasthan Sales Tax Rules contemplates single point taxation. ACCORDING to the scheme of the Act the goods which have already been subjected to tax will not be taken into consideration while computing the taxable turnover. In respect of the retailers and the like, it is just possible that where day to day stock is not maintained and the assessee dealing in tax-paid as well as taxable goods of the same nature it may not be possible for him to identify at the time when the sale is effected as to whether the goods are tax-paid or taxable and in that case it is only at the end of the year when the position of stock is taken that necessary minor adjustments are made, but this cannot give the justification for not paying the tax on those taxable goods the sales of which have been effected by him and claimed as tax-paid. The assessee is expected to keep the true and correct accounts. It is no doubt true that there cannot be double taxation but at the same time it is also true that the tax which is lawfully leviable cannot be avoided. Non-payment of tax at the proper time deprives the revenue of its legitimate claim and saves the assessee from the burden of the interest which is otherwise payable because of non-payment of tax. On the proper interpretation of the various provisions of the Act I am of the view that if the assessee is not having the stock of the tax-paid goods and the sale if effected from the taxable goods then the sale thereof cannot be shown as tax-paid on the expectation of the adjustment against future purchases up to the end of the year. The Sales Tax Tribunal was not justified in setting aside the tax on this ground. The proper course for the Sales Tax Tribunal was to direct the assessing authority to levy the tax on sales of taxable goods which were sold and the sale was claimed as tax-paid and adjust the closing stock as at the end of year accordingly. If an assessee is allowed to declare the sales of taxable goods as that of tax-paid goods then it would not be the correct picture of his sales and the stock which should have been claimed and carried forward at the end of the year as tax-paid cannot be converted into taxable stock to avoid due tax. The order of the Tribunal in this regard is not in accordance with the provisions of law and is set aside and the order of the assessing authority is maintained.