ASSISTANT COMMERCIAL TAXES OFFICER Vs. KANTA PRASAD SHARMA

JUDGEMENT

(1.) This sales tax revision petition under Section 86 of the Rajasthan Sales Tax Act, 1994 (hereinafter 'the Act of 1994) impugns the judgment dated 14.09.2004, passed by the Rajasthan Tax Board, Ajmer whereby the Tax Board has upheld the order of the Deputy Commissioner (Appeals) II, Jaipur passed on 01.07.2003 quashing and setting aside the order of penalty on the respondent-assessee passed by the assessing officer under his order dated 15.06.2002.

(2.) The facts of the case are that on 14.06.2002, vehicle No. UP 85-C-0469 transporting wheat from Mathura in the State of UP to the State of Rajasthan was checked at the Railway Godown, Bharatpur. On the driver of the vehicle being required to furnish documents relating to the goods in transit as mandated under Section 78(2) of the Act of 1994, the driver stated to not possessing any documents at all. In these circumstances, the statement of the driver of the vehicle in which the goods were transited was recorded. Thereafter a show cause notice was issued under Section 78(5) as also under Section 10(A) of the Act of 1994 to the driver of the vehicle on 14.06.2002 itself fixing the date of hearing as 21.06.2002. The vehicle in question was detained at the G.R.P. Police Thana, Railway Station, Bharatpur under Section 78(4)(a) of the Act of 1994 till further inquiry in the matter. In compliance with the notice dated 14.06.2002, Shri Kanta Prasad Sharma, respondent-assessee in this case, appeared through his Advocate before the assessing officer on 15.06.2002. A written reply to the notice was filed stating that the goods in transit belonged to farmers and had been bought by one Kripal Singh for the purpose of sale to M/s Thakur Das Bhagwan Das, New Mandi Yard, Bharatpur. It was stated that in these circumstances, the provisions of the Rajasthan Sales Tax Act, 1994 had no application to the goods in transit even in the course of inter-state sale. It was further stated that as the goods in transit belonged to farmers, the same were not liable to be taxed under the Act of 1994, therefore there was no question of any evasion of tax and no penalty as proposed could be levied.

(3.) The assessing officer on consideration of the reply filed by the respondent-assessee held that the goods were admittedly being transported from State of UP to the State of Rajasthan and consequently aside of other documents being required to accompany them under Section 78(2)(a) of the Act of 1994, they had also to be accompanied by form ST 18A. The said form was not found with the goods in transit, nor was filed along with reply to the show cause notice dated 14.06.2002. The assessing officer also found that in fact the goods in transit belonged to a business firm of Mathura in State of UP and had been brought for the purpose of sale to M/s Thakur Das Bhagwan Das, New Mandi Yard, Bharatpur. On the aforesaid findings concluding that there was a clear violation of provision of Section 78(2)(a) of the Act of 1994, the assessing officer levied a penalty on the goods in transit @ 30% of their value with reference to Section 78(5) of the Act of 1978. The goods was also taxed @ 4% of their value treating them as part of inter-state commerce. Penalty @ 50% of the value of the goods was also imposed with reference to Section 78(10A) of the Act of 1994 in view of the fact that the driver of the vehicle had gone through the check post without having the bills and other documents required to accompany the goods in transit endorsed. The aggregate liability fixed against the respondent-assessee was thus Rs.44,352/-.