N. K. JAIN, J. - (1.) THIS revision petition is directed against the order dated 27th September, 1986, passed by the Rajasthan Sales Tax Tribunal, whereby the learned Member of the Tribunal dismissed the appeal filed by the assessee.
(2.) BRIEF facts of the case are that the Assistant Commercial Taxes Officer. Ward I, Anti Evasion, Udaipur, visited the shop of the petitioner for verification of goods imported by the assessee from M/s. Seema Traders vide invoice No. 732 dated 16th December, 1981, which were carried by Northern Roadways, Delhi, through R. R. No. 9858 dated 16th December, 1981. On detailed survey of the stock and examination of account books it was found that goods never came to his shop on that date. As per the statement of the proprietor of the assessee-firm, Shri Surendra Singh, goods in question were never imported by him. He also stated that someone-else must have used the petitioner's name for importing goods, and he or assessee-firm had not taken delivery of the said goods. The respondent issued notice under section 22 (1) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act") for the enquiry of the alleged goods. The petitioner complied with the said notice. The respondent-department recorded the statement of Gurubachan Singh, partner of the transport firm, who has stated that it was not possible for him to tell as to who received the goods transported vide R. R. No. 9858. He further stated that recorded of the delivery of goods at the place of destination remains with the respective truck drivers. Thereafter, the respondent issued notice under section 10 (2) read with section 16 (1) (e) and section 22 (6) of the Act for the date 14th December, 1982. In compliance of the notice, Surendra Singh, proprietor, filed an affidavit on December 31, 1982 said that he has not brought any rubber foam from the said firm througha R. R. No. 9858 dated 16th December, 1981. Respondent vide its assessment order dated 21st February, 1983 came to the conclusion that the assessee imported and received the goods in question from M/s. Seema Traders and they were not accounted in the books as such evaded tax on sale of such goods and accordingly, on estimated sale price of such goods of Rs. 45,000 tax at 10 per cent was imposed, penalty of Rs. 9,000 under section 16 (1) (e) and under section 22 (6) (b) penalty of Rs. 1,148 was imposed and penalty was levied. Against the assessment order, the assessee preferred appeal before the Deputy Commissioner (Appeals) who partly allowed the appeal vide his order dated 30th May, 1983, observing that the delivery of the goods in question in the hands of the assessee has not been proved and therefore tax and penalty cannot be levied on mere presumption, and directed that the assessing authority may however further enquire into the matter from the driver of the vehicle concerned. Accordingly the tax levied on Sales of Rs. 45,000 and penalty of Rs. 9,000 under section 16 (1) (e) was set aside. The penalty under section 22 (6) (b) and interest under section 11-B were also reduced. The Deputy Commissioner (Appeals) remanded the matter to the assessing authority for re-examination. The respondent again passed assessment order on 6th July, 1985, after remand and accordingly tax as well as penalty of Rs. 4,500 and Rs. 9,000, respectively, were levied. Aggrieved by this order the assessee preferred appeal before the appellate authority who vide order dated 23rd April, 1986 dismissed the appeal on the ground that octroi has been deposited by the assessee. The petitioner preferred second appeal before the Tribunal, which was rejected on 27th September, 1986. Hence this revision. The main contention of the learned counsel for the petitioner is that the assessing authority without enquiring from the driver arrived at the conclusion that no purpose would have been served on enquiring from the driver as the goods have been passed through octroi post as it is apparent from the letter of the municipality. Thus he erred in coming to the conclusion of imposing tax and penalty. Which is illegal and against the order of remand. He further submitted that as per the evidence of the partner of transport firm who was not in a position to say that who has delivered the goods to the assessee, the place of destination can only be explained by the respective driver. Therefore, only relevant evidence was of the driver. It has further been argued that the petitioner neither purchased nor the goods ever came to their shops, so question of "that being not entered into books of accounts" does not arise. He has submitted that someone else has used the name of the petitioner for importing the alleged goods and similarly octroi could have been deposited in his name. Admittedly the goods were never recovered at the time of verification and the assessing authority has not controverted the fact that they were found at the time of verification. It is true that record kept in the natural course by municipality for the payment of octroi is an authenticity but as the goods were not admittedly found at the time of verification and transporter had shown his inability to verify that the goods delivered at the place of destination, i. e. , the shop of the petitioner but he stated that delivery of the goods at the place of destination can only be known from the the concerned driver. In view of the above situation mere depositing of octroi would not be conclusive evidence to prove the import of the goods, therefore, the evidence of driver is relevant to resolve the controversy as to whom actual delivery was given against R. R. in dispute. Thus, the driver's evidence was necessary to coming to the conclusion and the appellate authorities are not right in observing that according to the remand order, further enquiry was not to be made from the driver alone and no purpose could have been served by trying to locate the driver as the goods have been passed through the octroi post. Therefore the orders passed by the authorities deserve to be set aside. Under these circumstances it is just and proper that the assessing authority may record the statement of driver which can be ascertained from the transport company, that who was the driver at the relevant time and may take any other step for the purpose and after recording the evidence, the assessing authority can decide the matter afresh. Thus, the questions referred in this revision are not answered at this stage. However, it is expected by the assessee to help the assessing authority in examining the driver and resolving the controversy. In case driver is not traceable, the authorities are free to decide the matter as per material available on record, keeping in view of the above observation. In the result, this revision is allowed. The orders passed by the assessing authority, Deputy Commissioner (Appeals) and the Tribunal are set aside and the case is remanded back to the assessing authority with a direction to decide the case afresh as observed above. The assessee is directed to appear before the assessing authority on 15th January, 1991 and thereafter the assessing authority will proceed with the matter and decide it in accordance with law. Petition allowed. .;