RAJESH BALIA, J. - (1.) THESE five revisions arise out of the common order dated December 21, 1996 passed by the Rajasthan Tax Board, Ajmer, and also involve common questions and, therefore, they were heard together and are being disposed of by a common order. The brief facts leading to these revisions are : that Shri Nandkishore Moondra is doing the business of purchase and sale of automobile parts at Jodhpur in the name and style of M/s. Auto and Bearings. It is alleged that on December 13, 1993, the Assistant Commercial Taxes Officer (Anti-Evasion) inspected the business premises of the assessee and found one black coloured diary along with 63 loose papers containing entries regarding sale transactions of bearings. The assessing officer recorded the statement of the assessee and the diary and loose papers along with the ledger, journal and cash book were seized by the assessing officer. The diary consisted of two parts, one related to the transactions of the assessment year 1992-93 and the other of the year 1993-94, which were marked as exhibits 1 and 2 respectively. Loose papers were collectively marked as exhibit 3. The ledger, journal and cash book of the assessee were also seized and marked as exhibits 4, 5 and 6 respectively.
(2.) THEREAFTER, the assessee was called upon to explain the entries of exhibits 1, 2 and 3 and to compare the same with the regular account books and a show cause notice for imposing the penalty under section 16 (1) (i) of the Rajasthan Sales Tax Act, 1954 (for short "the Act") was also served upon the assessee. As stated above, since the aforesaid diary and loose papers related to the assessment years 1992-93 and 1993-94 and, therefore, two separate proceedings were initiated. The assessee filed replies pleading therein that the seized records exhibits 1, 2 and 3, relate to the business of Shri Abhay Moondra, son of Shri Nandkishore Moondra, who carries on the business of automobile parts at Bombay and was in Jodhpur on December 23, 1993. He is a registered dealer having R. S. T. Registration No. 1772/86 valid from February 18, 1989 and C. S. T. Registration No. JUC/ii/3796-RCR/3930 valid from March 17, 1989 and has been assessed under the Rajasthan Sales Tax Act, 1954 and the entries recorded in exhibits 1, 2 and 3 have been taxed at his hand. Even Abhay Kumar Moondra also admitted before the assessing authority by filing his affidavit that seized diary and loose papers belong to him and he has been assessed to tax in respect of the above transactions vide assessment order dated June 13, 1996. However, the assessing officer after considering the material before him assessed the assessee M/s. Auto and Bearings, computed the levy of tax and penalty for the assessment years 1992-93 and 1993-94 as under : Assessment Year 1992-93 : (a) Tax on undisclosed sale. . . Rs. 5,01,234. 00 (b) Penalty on evaded tax under section 16 (1) (i) of the Act. . . Rs. 5,40,000. 00 (c) Interest on evaded tax. . . Rs. 1,36,779. 00 (d) Interest on undisclosed ST-17 on amount of Rs. 68,640. . . Rs. 3,460. 00 (e) Interest on undisclosed ST-17c on amount of Rs. 61,448. . . Rs. 2,753. 00 -------------------- Total Rs. 11,84,226. 00 Advance deposited tax Rs. 2,14,540. 00 --------------------- Amount recoverable Rs. 9,69,686. 00 --------------------- Assessment Year 1993-94 : (a) Tax on undisclosed sale. . . Rs. 3,28,018. 32 (b) Penalty under section 16 (1) (i ). . . Rs. 6,56,036. 00 (c) Interest. . . Rs. 45,500. 00 ------------------ Total Rs. 10,29,554. 32 ------------------ Being dissatisfied with the above assessment orders, the assessee filed two separate appeals before the Deputy Commissioner (Appeals) in respect of assessment years 1992-93 and 1993-94. The appeal filed by the assessee relating to the assessment year 1992-93 was rejected by the Deputy Commissioner (Appeals) vide his order dated August 22, 1994 whereas the appeal filed by the assessee pertaining to assessment year 1994-95 was partly accepted by setting aside the imposition of tax to the tune of Rs. 1,16,663 relating to cash transactions recorded in second part of the diary, exhibit 2. The penalty amount of Rs. 2,33,324 and interest amounting to Rs. 16,182 relating to above sum were also set aside. Upholding the remaining part of the assessment order, the Deputy Commissioner (Appeals) directed the assessing authority to hold an enquiry into the so-called cash transactions and if any sale is proved regarding such cash transactions, the assessing authority shall be at liberty to levy the tax and the penalty in respect thereof in accordance with the law. Against the orders dated August 22, 1994, the assessee filed appeal Nos. 599 of 1995 and 503 of 1994 relating to assessment years 1992-93 and 1993-94 respectively and the Revenue filed Appeal No. 453 of 1995 pertaining to assessment year 1993-94 before the Rajasthan Tax Board, Ajmer. The Rajasthan Tax Board at the first instance set out the principle which governs the cases of such nature, and held that normally the burden of proving that the entries in certain loose papers found in the premises of the assessee relating to the sales or purchases made by the assessee during the relevant period of assessment was on the department and normal rule of evidence requires that it is the tax collecting authority which has to prove that the tax is payable by the assessee, but in a case where any books of accounts are found in any place of business of a dealer during any inspection, there shall be a presumption that they relate to his business unless the contrary is proved by the dealer. Such presumption is only a rule of evidence and can be rebutted by cogent evidence by the person against whom such presumption is raised, which is apparent from the use of the expression "unless contrary is proved by the dealer". The another principle to which the Tax Board addressed itself was that the statute prescribes for raising presumption about the ownership of the books of accounts or documents, etc. , found or seized at the time of inspection at the business premises of a dealer and about the goods found there, but on that basis it is not permissible to presume that every entry or writing in the document is to be presumed to be a sale transaction merely because the documents shows receipt of cash. Unless cash transaction is established by some material that it was received as a consideration of some sale transaction, it cannot be presumed that it was a sale transaction so as to form part of the turnover. In my opinion, with this premise, the Tax Board considered the material before it and came to conclusion with regard to assessment year 1992-93 that transactions totalling Rs. 5,57,087 were mere cash entries and cannot be treated to any sale transactions. It also noticed that for the assessment period 1993-94, the appellate authority too has not accepted mere cash receipts as sale transactions and has allowed the appeal to that extent. Applying the aforesaid tests, it held : " Learned assessing authority also had not treated the cash entries as the sale transactions and in view of this, we are inclined to hold that the above cash entries found in exhibit P. 1 are not liable to tax. The total cash transactions arrived at and taxed by the assessing authority come to Rs. 5,57,087, as mentioned in his order and, therefore, without going into the detail, we hold that the aforesaid cash entries of Rs. 5,57,087 should be excluded from the total concealed turnover. " As a result of the above finding, the appeal No. 599 of 1995 filed by the assessee relating to assessment year 1992-93 was partly accepted and the levy on cash transactions of Rs. 5,57,087 and on miscellaneous sales amounting to Rs. 1,63,690 also not proved to be relating to sale transactions and on the transactions made by Shri Abhay Kumar Moondra amounting to Rs. 3,66,082 totalling to Rs. 10,87,127 were set aside and the total concealed sale arrived at by the assessing authority was reduced from Rs. 23,27,577 to Rs. 12,40,450, which was assessed to tax at 12 per cent levy of tax, which came to Rs. 1,48,854. Consequently, penalty and interest under section 11-B were also reduced. The Board also reduced the extent of penalty from maximum rate levied by assessing officer to minimum penalty leviable. As a result, penalty of Rs. 1,48,854 was imposed on the aforesaid sales under section 16 (1) (i) and the assessee was made liable to pay interest under section 11-B of the Act which was to be calculated by the assessing authority. The rest of the levy as ordered by the assessing authority as difference of tax in lieu of declaration was upheld.
(3.) APPEAL No. 503 of 1994 pertaining to assessment year 1993-94 was also partly accepted by the Tax Board and the amount of concealed sales, i. e. , Rs. 27,33,486 arrived at by the assessing authority was brought down to Rs. 6,41,300 and a tax of Rs. 76,956 at 12 per cent and the penalty equal to the amount of tax, i. e. , Rs. 76,956 were sustained against the assessee. The assessee was also made liable to interest under section 11-B of the Act, which was directed to be calculated by the assessing authority. However, the APPEAL No. 453 of 1995 filed by the Revenue was dismissed by the Tax Board. Being dissatisfied with the impugned order dated December 21, 1996 passed in APPEALs Nos. 599 of 1995 and 503 of 1994 and 453 of 1995 the Revenue has filed three revisions and the assessee has filed two appeals against the judgment dated December 21, 1996 passed in APPEALs Nos. 503 of 1994 and 599 of 1995. I have heard Mr. Sangeet Lodha, the learned counsel appearing for the Revenue and Mr. Rajendra Mehta, the learned counsel for the assessee and have gone through the material placed before me. As stated above, the learned Tax Board has recorded a finding that certain transactions disclosed in the documents seized at the time of search, viz. , exhibits 1, 2 and 3 relate to the sale transactions of Shri Abhay Moondra, son of the present dealer, who has been assessed in respect of such transactions as a registered dealer. That is a finding of fact. The very important aspect of the matter is that the diary and loose papers were from the beginning claimed to be of son of the dealer, who is having his own independent business. There is no dispute that Shri Abhay Moondra, son of the present dealer himself is a registered dealer and has been assessed in respect of such transactions which were found recorded in his own diary and therefore, such transactions are not liable to be included in the taxable turnover of the present assessee. In this view of the matter, the above finding recorded by the learned Tax Board cannot be said to be either perverse or in any way unreasonable or unfounded. No question of law arises for the purpose of re-appreciating the evidence in this regard. So far as the finding recorded by the learned Tax Board that unless there is some material which can relate that cash receipts were received as a consideration of some sale transaction, it cannot be presumed that the same was a sale consideration so as to form part of the taxable turnover and in the instant case, the Revenue has failed to establish any such link that cash receipts to the extent noticed above were sale transactions and are as a result of proper appreciation of material, and it cannot be said that the above findings are either perverse or unreasonable or unfounded. The principles of law have rightly been enunciated and followed. ;