- (1.) A challenge has been made in this revision petition to the order dated July 10, 2007, passed by the Rajasthan Tax Board, Ajmer whereby the Tax Board has been pleased to uphold the order passed by the appellate authority setting aside the penalty levied on the assessee under section 78(2)(b) of the Rajasthan Sales Tax Act, 1994 (hereinafter to be referred "the 1994 Act"). The facts of the case are that in the course of transit of goods, the vehicle, in which goods were being carried, from Delhi to Bhiwadi, was checked and in the course of checking even though documents relevant for authenticity of goods were found, yet the documents did not contain the seal indicating the production of documents at the check-post. Consequently a notice came to be issued to the assessee. The assessing authority imposed penalty under section 78(10A) to the tune of Rs. 1,49,979 vide order dated September 19, 2004. The appellate authority has corrected misinterpretation of the assessing authority in levying penalty. The order of the appellate authority has been upheld by the Tax Board.
(2.) Heard learned counsel for the parties, and perused the orders impugned.
(3.) The learned counsel for the petitioner fairly concedes that the issue involved in this revision petition is covered by the judgment dated November 24, 2010, in S.B. Sales Tax Revision No. 201 of 2010 (Assistant Commercial Taxes Officer, Zone IT, Anti Evasion, Alwar v. Shri Ram Tirthputra Shri Dudhnath), wherein relying on judgment of the Division Bench in State of Rajasthan v. Tajiander Pal,2003 6 TU 84, it was held that these provisions are not mandatory and are directory in nature. It was further held that if all the requisite documents are available at the time of checking of vehicle/goods, then intention to evade tax cannot be inferred. Both the appellate authorities have recorded a concurrent finding that there was no mens rea on the part of the assessee as all the required documents were available and tax had already been paid by the assessee, therefore, the intention to evade tax cannot be interred.;