STATE OF RAJASTHAN Vs. VISHAMBHAR DAYAL RAMSWAROOP

JUDGEMENT

(1.) THIS is Asstt. Commercial Taxes Officer Bharatpur's revision petition against the order passed by the Deputy Commissioner, Taxation (Appeals) dated 10-1-1964. The facts are that the respondent is a registered dealer. He deals in Sarrafa goods. He was assessed for the year 1957-58. The Sales Tax Officer as a result of the scrutiny of his account found that the silver goods worth Rs. 8170/8/- and the gold goods worth Rs. 1876. 00 were not properly accounted; but they were shown as stolen. The Asstt. Sales Tax Officer was not satisfied with this explanation and he included this amount in the gross sale turn over of the individual and assessed him for the sales tax. In appeal the Dy. Commissioner reversed this order on the ground that loss of goods by theft was not a sale. It is against this order that this present revision has been filed.

(2.) THE contention of the advocate on behalf of the Asstt. Sales Tax Officer was that in the absence of satisfactory proof of loss of silver and gold goods by theft, the turn over should have been included as sold by the dealer. THE respondent despite notice did not appear. THE disagreement between the two subordinate authorities was on a question of fact whether the goods of silver and gold were in fact stolen or not. THE burden of proof that the goods were actually stolen rested heavily on the respondent. In the absence of a satisfactory proof, the Sales Tax Officer was perfectly justified in including the value of the silver and gold goods in the turn over. THE decision of the appellate Court in holding that the goods were actually stolen was based on no evidence at all. In doing so the appellate authority should have given a clear finding that the theft was properly reported in time by the respondent to the Police authorities and that no recovery took place so far. In the absence of evidence, the finding of fact arrived at by the appellate authority on the question that the losses of silver and gold goods were by theft, was an improper and perverse finding.