COMMERCIAL TAXES OFFICER, ANTI EVASION Vs. PHOOL SINGH

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioner -Department, under section 86 of the Rajasthan Sales Tax Act, 1994 (in short, "the Act") against the order dated July 5, 2007 passed by the Rajasthan Tax Board, Ajmer (in short, "The Board") in Appeal No. 1630 of 2006, which upheld the order dated May 21, 2005 passed by the learned Deputy Commissioner (Appeals), Bharatpur, (in short, "the DC (A)"), who had deleted the levy of penalty of Rs. 66,215 imposed by the learned Assistant Commercial Taxes Officer (in short, "the ACTO"), under section 78(5) of the said Act. The brief facts leading to this case are that on July 3, 2005 the goods, i.e., iron rods were being transmitted by a vehicle bearing No. RJ -02G -2468 from Bhiwadi to New Delhi. On checking made by the ACTO, Anti Evasion, of the Department, it was noticed that the driver of the vehicle was having Bilty No. 229 dated July 2, 2005, Invoice No. 1321 dated July 2, 2005 but declaration form No. ST -18C was not available with the driver, the declaration form No. 0948588 was produced later on however, in the said declaration form there was minor cutting in column No. 10 in the vehicle number except this, the form was found to be correct in all respect. However, the ACTO was not satisfied and imposed penalty to the extent of 30 per cent of the value of goods amounting to Rs. 66,215.

(2.) DISSATISFIED with the order of penalty, imposed by the ACTO the respondent preferred an appeal before the learned DC (A), who after going through the material on record, deleted the penalty levied by the ACTO vide order dated December 21, 2005 as the goods were under stock transfer and that there was no evasion of tax and when there was no evasion of tax question of penalty does not arise and he also stated that form No. ST -18C was produced thereafter, immediately on demand and following the judgment of the apex court rendered in the case of State of Rajasthan v. D.P. Metals : [2001] 124 STC 611 (SC) held that no penalty could be leviable, it was further held that stock transfer does not attract any tax, therefore, when there is no tax no penalty is leviable and accordingly, the penalty was deleted. Being dissatisfied with the order of the DC (A), the petitioner -Department preferred an appeal before the Tax Board, Ajmer, who after going through the material on record upheld the order passed by the DC (A) vide its order dated July 5, 2007 holding that no penalty could be leviable as the form No. ST -18C was made available immediately on demand, therefore, the judgment of State of Rajasthan v. D.P. Metals : [2001] 124 STC 611 (SC), is squarely applicable to the facts of the present case and the instant case is covered by the said judgment of the apex court.

(3.) IT is argued by the learned counsel for the petitioner -Department Ms. Tanvi Sahay, that at the time of checking of the goods though all relevant papers were available but form No. 18 -C was not readily available and it was produced later on and there was some cutting in column 10 with regard to vehicle number. She further argued that the form No. ST -18C is mandatory to be carried and produced at the time of checking and on demand by the ACTO. Since, the form No. ST -18 -C was not available and it was produced later on and even the said declaration form had cuttings therefore, the ACTO was quite justified in levying the penalty and the penalty was rightly imposed and it should be sustained.