- (1.) This revision petition has been filed by the Revenue being aggrieved by the order dtd. 7.12.2008 passed by the Rajasthan Tax Board, Ajmer. While dismissing the appeal of the ACTO, the learned Tax Board upheld the order of the Dy. Commissioner (Appeals) and thus both the appellate authorities set aside the penalty imposed upon the respondent-assessee by the Assessing Authority under Section 78(5) of the Rajasthan Sales Tax Act on the ground that invoice accompanying the goods in transit at the time of checking by the said ACTO showed the goods to be S.T. Paid, whereas according to the said assessing authority- ACTO (Flying Squad), Sri Ganganagar who checked the said goods in transit in accordance with the provisions of Section 78 of the Act, the sale in question amounted to inter-state sale as the seller was of State of Rajasthan and the purchaser was of the State of Punjab, who under the said invoices purchased the said motor spare parts and since no Central Sales Tax was charged in the said invoices, according to the said authority, the same amounted to evasion of tax and thus, the bill found to be not valid or forged in this manner, the penalty under Section 78(5) of the Act was attracted and he imposed penalty of Rs. 2, 11, 680/- on the respondent-assessee-seller of these goods at the rate of 30% of the value of the goods and CST thereon.
(2.) The appellate authority has set aside the said penalty on the ground that since the sale in question was complete within the State of Rajasthan as the goods were sold by the respondent-assessee at Sri Ganganagar and merely because the goods were being transported to the State of Punjab by the purchaser, the bill in question issued by the duly registered dealer of the State of Rajasthan cannot be said to be false or forged and thus, no penalty under Section 78(5) of the Act could be imposed upon the respondent-assessee. Being aggrieved by the said order of the appellate authority- Tax Board, the Revenue has approached this Court by way of present revision petition.
(3.) Mr. V.K. Mathurand Mr. Lokesh Mathur, learned Counsel appearing of the Revenue submitted that since the purchaser belonged to State of Punjab and it was not shown before the assessing authority that the goods in question were not sold in the course of inter-state trade or commence, the Assessing Authority could genuinely believe it to benter-state sale and in absence of any Central Sales Tax charged in the said invoice, the same could not be said to be a valid bill and thus, the penalty under Section 78(5) of the Act was attracted. He submitted that the said penalty was imposed relying on the statement recorded by the assessing authority of the driver of the vehicle on 1.9.2005 at the spot and thereafter the Manager of the respondent-assessee-firm on 9.9.2005 who stated before the said assessing authority that the order for purchase of these motor spare parts was placed by the purchasers of Punjab State and in pursuance of same, they had purchased these goods from Jaipur depot of M/s. Ashok Leyland by sending an order through E-mail on 23.8.2005 and thereafter the goods were sold to the purchaser of the State of Punjab. They supported the order passed by the assessing authority and prayed for allowing of the present revision petition.;