V. K. SINGHAL, J. - (1.) SINCE the point involved is common in all these revision applications, therefore, they are being disposed of by this common order. The point in dispute is that the respondents were assessed to sale tax under the provisions of the Rajasthan Sales Tax Act, 1954. Thereafter the assessing authority has received an information that the full amount of the sale price has not been shown in the return which has resulted in the escapement of tax. Proceedings under section 12 of the Rajasthan Sales Tax Act were taken and the assessee was given opportunity to produce the books of account but the books of account were not produced nor the debit notes were produced, therefore, the escaped turnover was calculated on estimate basis. The assessing authority levied the tax in respect of the turnover determined and has also levied penalty under section 16 (1) (i ). The appeal was rejected by the Deputy Commissioner (Appeals), and the levy of tax was upheld but the penalties were set aside.
(2.) IN the second appeal preferred before the Sales Tax Tribunal by the assessee in respect of tax and by the assessing authority in respect of penalty, the levy of tax was set aside and the appeal in respect of penalty was rejected. The learned Government Advocate, Shri Bapna has contended before me that in accordance with the provision of section 2 (p) of the Rajasthan Sales Tax Act, the amount which was collected by the assessee as "warranty" for the second and subsequent years is part of the sale price because one price from all the customers has been charged and when the assessee was asked to furnish the bills an affidavit was submitted by him in this Court and it was tried to point out that the warranty charges were not collected in respect of all the transactions of sale and it was voluntary in nature but subsequently the assessee has withdrawn the affidavit for the reasons best known to him. Mr. Bapna has contended that as a matter of fact only one consolidated sale price was charged and in order to evade the tax the price was bifurcated into two parts one as the sale price of commodity and other as warranty charges which have been collected from all the customers uniformly. Mr. Kotwani, the learned counsel for the assessee, has pointed out that the sale price as defined under section 2 (p) of the Rajasthan Sales Tax Act refers to only that sum which has been charged of anything done by the dealer in respect of the goods at the time of or for the delivery thereof. He has submitted that a separate contract has been entered into for the service to be rendered which are in the nature of insurance to the purchaser for any future defect in which event any part may or may not be replaced. A number of authorities have been cited from both the sides. I have considered the arguments of both the parties and I have gone through the record. The definition of sale price as provided under section 2 (p) of the Rajasthan Sales Tax Act, 1954, clearly envisages that only that amount which is paid or is payable to a dealer as consideration for sale of goods will be included in the sale price. This definition has further been extended to include such further sums which might be charged for anything done by the dealer in respect of the goods at the time of or before the delivery. If the dealer is charging one sale price irrespective of the warranty of the second and subsequent years then the position may be different, but if it is optional to the purchaser to avail the benefit of the warranty or not to avail in respect of the second and the subsequent years for which a separate payment is made in addition to the sale price, then such separate payment cannot be included in the sale price. The payment by way of warranty is like an insurance charge and when the said amount is collected there is no transfer of property and at a future date a contingency may or may not arise where the defective part is replaced. In such a situation it cannot be said that the amount has been collected in respect of an act done before or at the time of delivery of the goods. The said amount has been charged not in respect of any goods delivered but for some future act. I am also in agreement with the contention of Mr. Kotwani that the definition as given under the Central Excises Act for the purpose of "cost" cannot be applied nor the decision thereof have any relevancy because the Rajasthan Sales Tax Act is a self-contained code and in view of the specific definition the assistance from the other Act cannot be taken. In these circumstances, I am of the view that if the payment in respect of warranty were voluntary in nature and have separately been charged then it will not form the part of the sale price. The assessee has neither produced the books of account, nor the information required was furnished before the assessing authority and the Tribunal has proceeded only on the basis of one bill. It would be proper to sent the matter back to the Commercial Taxes Officer for examination whether there was separate price for the sale of the commodity with warranty and without warranty or it was one price as contended by Mr. Bapna in all cases and if it is found that the price was one whether the warranty is taken or not, then no benefit can be availed by the assessee. But if the amounts charged are separate for the value of the commodity and the warranty charges and said payment have not been collected from all the dealers, then the same will not form part of the sale price.
(3.) WITH regard to the penalty I am of the opinion that the order of the Deputy Commissioner as upheld by the Sales Tax Tribunal is proper and no penalty can be levied in such a case where entries are existing in the books of account and the matter relate only to the interpretation of the definition of "sale price". The penalty has rightly been set aside and the order in this respect is upheld. The revision is partly allowed. No order as to costs. Petition partly allowed. .;