B. R. ARORA, J. - (1.) THIS Sales Tax Revision Petition has been filed by the petitioner under section 15 of the Rajasthan Sales Tax Act against the order dated 11th of March, 1988 passed by the Rajasthan Sales Tax Tribunal.
(2.) BRIEF facts of the case are that the asses see Ganesh Chimini In Bhatta Utpadak Samiti Limited is a registered dealer and at the relevant time doing the business of production and sale of bricks. The assessment for the assessment year 1972-73 and 1973- 74 was completed by the Assessing Authority under section 10 (4) (I) of the Rajasthan Sales Tax Act. The assessing authority while completing the assessment, came to the conclusion that for a period 1. 7. 72 to 30. 6. 74 there was a concealment of tax by the assessee-non-petitioner. The Assessing authority therefore made the addition of As. 12,323. 74 P. as tax for the assessment year 1972-73 and he also added an amount of As. 13,174. 17p. for the assessment year 1973-74. The Assessing Authority also imposed a penalty under section 16 (1) (i) of the Rajasthan Sales Tax Act amounting to As. 24,000/- for the assessment year 1972-73 and As. 23,000/- for the assessment year 1973-74. Dissatisfied with the order passed by the Assistant Commercial Taxes Officer (ANSI Evasion) Shri Ganganagar the asses see preferred an appeal before the Deputy Commissioner (Appeals) Commercial Taxes Bikaner who by his order dated 15th April 1984 dismissed the appeal filed by the asses see. Aggrieved by the order passed by the Deputy Commissioner (Appeals) the asses see preferred an appeal before the Rajasthan Sales Tax Tribunal, Jaipur and the Tribunal by its judgment dated 11. 03. 1988 allowed the appeal filed by the asses see by holding that the account-books kept by the asses see which was not believed by the assessing authority on flimsy grounds and on the basis of which the order of penalty and addition has been made but these very account books have been accepted by the assessing authority for the subsequent years and, therefore, this made the addition of tax as well as the imposition of penalty wholly illegal. The Tribunal further held that the addition of tax as well as the imposition of penalty has no basis and the Tribunal therefore refused to levy penalty but however, with the consent of the parties made addition of tax of As. 12,000/-only. The point that has been raised by the counsel for the petitioner in the present case is that the learned Tribunal set aside the penalty without assigning any reason. The contention of the learned counsel for the petitioner is that before setting aside the penalty it was necessary for the Tribunal to have assigned the reason for doing so. He in support of his case placed reliance over the judgement of this court in Commercial Taxes Officer, Suratgarh Vs. M/s. Subhash Trading Co. (1) decided on 04. 8. 88 Mr. S. N. Sharma, appearing for the asses see has supported the judgment of the Tribunal and has submitted that the Tribunal has specifically come to the conclusion that the addition made by the assessing authority was not legal and, therefore, there is no question of imposing the penalty. His further contention is that the order was passed with the consent of the parties and, therefore, the petitioner now cannot recall from the concession made by it. He has further submitted that though it was found specifically mentioned in the judgment that order was passed with the consent of the parties but no ground has been taken in the revision petition that this concession was not made. He in support of this contention, relied upon the judgment of the Supreme Court in State of Punjab vs. M/s. Mulakh Raj Nandlal (2) I have gone through the judgment passed by the Tribunal as well as the relevant record of the case. Section 16 of the Rajasthan Sales Tax Act Deals with the offences, penalties and prosecution and provides as under :- If any person (i) has concealed any transaction of sale or purchase from his books of account or registers required by or under Section 21, the assessing authority or any other officer not below the rank of Assistant Commercial Taxes Officer as authorized by the commissioner may direct that such person shall be pay by way of penalty (vi) in cases referred to in cl. (i) in addition to tax payable of such transections of sale or purchase a some not exceeding double the amount of such tax" Section of the Rajasthan Sales Tax thus gives power to penalise evasion of tax which is lawfully due and this power is ancillary to the power of taxation. The power of imposition of penalty for concealment or non-disclosure is not' a routine matter but it has to be exercised judicially. It is not in each and every case when there is an addition of tax, then the penalty should be imposed. The penalty can be imposed when the Commissioner comes to the conclusion that there was wilful admission on the part of the asses see to evade the tax and there is an intentional concealment of income. In the present case, the Tribunal has given specific finding that there was no intentional concealment of any tax by the assessee. The Tribunal has come to the conclusion that the addition made by assessing authority was illegal and thus there is no reason to impose penalty. The Tribunal came to this conclusion after taking into consideration the account-books maintained by the assessee which was accepted as true by the assessing authority for the latter years. In this view of the matter, I am of the opinion that the Tribunal has given valid reasons for not imposing the penalty. The judgment relied upon by the counsel for the petitioner also does not help the petitioner. In that case a penalty of Rs. 700/- was imposed by the assessing authority which was under section 16 (1) (k) of the Rajasthan Sales Tax Act and the Tribunal without assigning any reason reduced the penalty from Rs. 7000/- to Rs, 5000/ -. This Hon'ble Court while remanding that case to the Tribunal directed the Tribunal to indicate the circumstances which weighed with it for making the deduction. However, the Hon'ble the Chief Justice in that case observed that the Tribunal had jurisdiction to impose or reduce penalty while setting aside the Deputy Commissioner (Appeal's) order. As no reasons were recorded and, therefore the case was remanded. In the present case, the Tribunal has assigned reasons for not imposing the penalty. The Tribunal has power to levy or not to levy the penalty and when he exercised its power and assigned reasons then there is no question of interfering in the power which the Tribunal has rightly exercised. I, therefore, do not find any force in the revision petition and the revision petition is, therefore, dismissed without any order as to costs. .;