Alok Sharma, J. - (1.) THE above petitions involve identical question for the adjudication by this court and are being disposed of by this common order. These petitions have been flied impugning the order dated January 22, 2009, passed by the Rajasthan Tax Board, Ajmer, upholding the order dated July 28, 2007, passed by the Deputy Commissioner (Appeals), Jodhpur, setting aside the levy of penalty on the respondents -assessee under section 76(6) of the Rajasthan Value Added Tax Act, 2003 (hereinafter, "the Act of 2003").
(2.) THE facts of the case are that the vehicle of the respondent -assessee was checked by the Assistant Commercial Taxes Officer, Anti -Evasion, Ward II, Bharatpur, whereunder mustard solvent extract oil was being transported from Alwar (Rajasthan) to Morena (Madhya Pradesh). In the course of checking by the Sales Tax Department, it was found that the goods in transit were accompanied by all documents required under section 76(2)(b) of the Act of 2003 such as goods receipt, bills, declaration in VAT 49 and also declaration form in ST 49 from Madhya Pradesh. The documents were thus complete. However, the petitioner -ACTO was of the opinion that the inter -State sale by the respondent -assessee from its Alwar office to its own branch in Morena was vitiated/illegal and on this count alone penalty under section 76(6) of the Act of 2003 was levied. The matter was considered by the Deputy Commissioner (Appeals) in appeal, who taking into consideration the fact that all the requisite documents were in accompaniment of the goods in transit and that no inquiry was held to hold that there was any intent to evade the tax, set aside the order of penalty. More importantly, it was also noted that the goods in transit in the course of inter -State sale had also been visited by two per cent tax as otherwise leviable on such sale. The Deputy Commissioner (Appeals) further found that in the event the inter -State sale was not valid, the said sale could be discarded by the Assistant Commercial Taxes Officer in the course of regular assessment of the respondent -assessee. So holding the penalty under section 76(6) of the Act of 2003 was set aside.
(3.) FURTHER appeal by the respondent -assessee to the Rajasthan Tax Board, Ajmer, was dismissed primarily on the count that the goods in transit were duly dispatched and accompanied by all the requisite documents and thus not indicative any intent to evade tax. It was further held by the Tax Board that no inquiry was held by the assessing authority to conclude that the documentation by the respondent -assessee was deliberately conceived with an intent to evade the tax and that the penalty had been levied on mere suspicion.;