VINEET KOTHARI - (1.) THE learned counsel for the assessee submitted that the controversy involved in the present case is squarely covered by the decision of coordinate bench of this Court in the case of ACTO, Ward II, Anti Evasion, Bharatpur vs. M/s Smilex Pharmaceuticals -, 2011 (2) WLC (Raj.) 494.
(2.) The learned counsel for the petitioner submitted that even though form No. VAT 49 was not produced at the time of checking, but the same was immediately applied for and got issued on the same date of checking on 28.7.2008 and was duly furnished before the assessing authority, the compliance was made in accordance with the decision of Hon'ble Supreme Court in the case of State of Rajasthan V/s D.P. Metals reported in : (2002) 1 SCC 279 and the coordinate bench of this Court has already set aside similar penalty in the case of M/s Smilex Pharmaceuticals (supra). In the case of Smilex Pharmaceuticals (supra), this Court has observed as under: 6. I have considered the submissions of learned counsel for both the parties and examined the orders passed by the Assessing Officer, Dy. Commissioner (Appeals) and Tax Board minutely and I find that although the Tax Board committed an illegality in dismissing the appeal of the revenue on the ground that order under Section 78(5) could not have been passed against owner of the goods in view of ratio laid down by Hon'ble Apex Court in ACTO vs. Bajaj Electrical Ltd.(supra), but it is an admitted fact, which has not been disputed by the learned counsel for the revenue or petitioner also, that declaration form ST -18C had already been produced before the Assessing Officer along with reply to show cause notice, but the said point has not been considered by the Tax Board while rejecting the appeal of petitioner. In State of Raj. & Anr. vs. D.P.Metals's case (supra), the Hon'ble Apex Court considered the provisions of Section 78(5) and 78(2) of the Act and held that "if by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same". Since the assessee produced the declaration form ST -18C before the Assessing Officer in response to show cause notice then the Dy.Commissioner (Appeals) was fully justified in setting aside the order of the Assessing Authority levying penalty under Section 78(5) of the Act. 7. In these circumstances, I find that although the order of the Tax Board is liable to be set aside in view of judgment of Hon'ble Apex Court in the case of ACTO vs. Bajaj Electrical Ltd.(supra), but order of the Assessing Authority was rightly set aside by Dy. Commissioner(Appeals), in view of judgment of Hon'ble Apex Court in State of Raj. & Anr. vs. D.P.Metals's case (supra)
(3.) IN the present case also, since the Form VAT -49 was produced before the Assessing Authority on the same date in pursuance of show cause notice, the penalty is liable to be set aside.;