B. R. ARORA, J. - (1.) THIS revision petition has been directed against the order dated July 7, 1988 passed by the Rajasthan Sales Tax Tribunal, Ajmer by which the learned Member of the Tribunal rejected the appeal filed by the petitioner assessee.
(2.) BRIEF facts of the case are that the Commercial Taxes Officer (Anti Evasion) Udaipur surveyed the business Premises of the petitioner assessee on 23rd/24. 09. 1982. At the time of survey one octroi receipt for 120 bags of maize issued by the Check post Bala Road was found at the business premises of the petitioner, but these 120 bags of maize were not found accounted for in the books of the accounts of the petitioner assessee. Notice was issued to the petitioner and after necessary inquiry the Commercial Taxes Officer (Anti Evasion) Udaipur assessed the petitioner for the accounting period 1982-83 (27. 10. 81 to 15. 11. 82) and made an addition of tax of the amount of Rs. 12,141. 35 and he also levied a penalty of Rs. 24, 282. 70. The Assessing Authority also levied interest under section 11 (I) of the Act amounting to As. 1445. 20. Dissatisfied with the order passed by the Commercial Taxes Officer (ANSI Evasion) Udaipur, the petitioner preferred an appeal before the Deputy Commissioner (Appeals) Commercial Taxes Department Udaipur. The Deputy Commissioner (Appeals) dismissed the appeal filed by the asses see. Aggrieved with the order passed by the Deputy Commissioner rejecting the appeal the asses see preferred an appeal before the Rajasthan Sales Tax Tribunal Ajmer and the Tribunal by its order dated 7th of July, 1988 dismissed the appeal filed by the asses see. Aggrieved with the order passed by the Tribunal rejecting the appeal, the present revision petition has been filed under section 15 of the Rajasthan Sales Tax Act. The main contention of the Counsel for the petitioner, in the present case, is that the Assessing Authority as well as the Deputy Commissioner (Appeals) and the Tribunal relied upon the evidence produced by the Department, but no opportunity for cross examining those witnesses were given to the petitioner. It is settled position of law that when a statement of any witness or a document is used against the asses see, then it is the bounded duty of the authorities concerned to afford an opportunity of cross examining or to rebut the case to be given to the person concerned against whom the evidence is being used. It is an admitted position that in the present case no opportunity of cross-examining the witnesses was afforded to the petitioner and the evidence produced by the department was considered and taken into account against the petitioner in passing the order and raised the addition imposed the tax as well as the penalty and interest. This point was also raised by the petitioner before the Tribunal in appeal but the learned Member of the Tribunal was of the view that in the special circumstances of the case, the asses see cannot be allowed to cross examine the witnesses. In the facts and circumstances of the case, when an evidence has been relied upon by the authorities concerned, against the asses see then it would have been most appropriate and proper in the interest of justice that the petitioner should have given an opportunity of cross-examining the witnesses and to rebut the evidence used against the petitioner. By not allowing to do so, in my opinion, the authorities concerned have committed a jurisdictional error. In the result, I allow this revision petition, set aside the orders passed by the Tribunal and remand the case to the Commissioner Sales Tax (ANSI Evasion) Udaipur to re-decide the matter after giving an opportunity to the petitioner to cross- examine the witnesses and to rebut the evidence which is sought to be used against the petitioner. .;