V. K. SINGHAL, J. - (1.) THE following questions have been posed by the assessing authority for decision of this Court in its revisional jurisdiction : (i) Whether, in the facts and circumstances of the case, the Tribunal misread the documents in holding that garments costing less than Rs. 10 have been taxed, whereas those items were not garments but hosiery products and as such the finding is perverse ? (ii) Whether, in the facts and circumstances of the case, the Tribunal misread the list as pages 41 and 42 where only out of large number of items khadi worth Rs. 2,619. 15 was erroneously taxed ? (iii) Whether, in the facts and circumstances of the case, there was slight error in the assessment for which entire penalty should not have been set aside the findings thus are based on conjectures and surmises ? (iv) Whether, in the facts and circumstances of the case, no tax-paid items have been included in the taxable goods list ? (v) Whether, in the facts and circumstances of the case, it was necessary to supply the copy of the survey report, statement the same was supplied on his demand ?
(2.) THE brief facts of the case are that the business premises of the assessee was inspected on July 4, 1981. List of the taxable goods was prepared. According to the assessing authority goods taxable at 3 per cent of Rs. 45,782 and taxable at 3. 5 per cent of Rs. 25,780 was found in excess, than recorded in the books of accounts. Penalty under section 22 (6) of Rs. 14,312 was levied. On the same date, i. e. , on September 16, 1981, a provisional assessment for the period April 1, 1981 to July 3, 1981 was also finalised and in respect of the goods found short of Rs. 81,100 after adding the profit, tax was levied on the sales of Rs. 95,000 at the rate of 8 per cent and penalty under section 16 (1) (e) was levied of Rs. 15,200. The assessee preferred two appeals against both these orders to the Deputy Commissioner (Appeals) wherein the penalty levied under section 22 (6) and the tax levied was upheld and the matter was remanded in respect of imposition of penalty of Rs. 15,200 which was levied under section 16 (1) (e) and was directed to be levied under section 16 (1) (i) after issuing proper notice. Against the order of the Deputy Commissioner (Appeals) second appeals were preferred to the Rajasthan Sales Tax Tribunal, Ajmer, where it was contended that there was neither any excess nor shortage in the taxable goods and the difference was on account of the miscalculation of the taxable goods and non-consideration of the taxable goods lying at the top of the shop. It was also Submitted that the Commercial Tax Officer has included the goods which were exempted from the payment of tax and also the goods which were tax-paid. The Tribunal came to the conclusion that the several goods Of cotton and woollen fabric and khadi which are exempted goods being included in the list prepared along with the tax-paid goods. The Tribunal also came to the conclusion that there is nothing on the record to indicate that the valuation of the goods taxable at different rate was done at the instance of the assessee. The learned Deputy Government Advocate relied upon the statement of the assessee wherein he admitted that the list of taxable goods was prepared in his presence. The Tribunal came to the conclusion that the statement of the assessee (partner), Meghraj, is not correct being contrary to the facts and the statement made in ignorance of facts is not binding. It was also observed that the assessee moved for certified copy of the survey report, statement and the list and though the tax and penalties were levied on the basis thereof yet they were not supplied the copies and, therefore, the order was found vitiated on this ground also. The contention of Mr. Bapna, learned Government Advocate, is that list was prepared at the instance of the assessee and there is an admission on his part. He has shown the list that the alleged tax-free items were hosiery goods, which were taxable. The list of the stock prepared has been perused by me from which I find that in the said list there is neither any mention that the price was informed by the partner who was present at the time of survey. Pages 41 and 42 as mentioned in the order of the Tribunal are not existing in the file and the page numbers have been changed from time to time in the file. In the report prepared it has nowhere been mentioned that at which time the Assistant Commercial Taxes Officer and the inspectors went to the business premises and when the inspection was completed in accordance with the provisions of section 22 of the Rajasthan Sales Tax Act read with rule 58 of the Rajasthan Sales Tax Rules, 1955. The provisions of the Code of Criminal Procedure were applicable to the searches under sub-sections (4), (5) and (6) of section 22. The proviso to sub-section (8) of section 22 also contemplates that the list of the goods seized shall be prepared by such authority or person and signed by two witnesses. The list prepared which runs into 17 pages is not signed by two witnesses. In the present case I am in agreement with the order of the Tribunal that there was neither proper seizure nor it has been established that any goods were purchased and were not recorded in the books. The Tribunal further held that in spite of the application for certified copy submitted for the list prepared, and statement recorded and survey report the same were not delivered to the assessee. The rule of audi alteram partem applies to the proceedings under the Rajasthan Sales Tax Act as well. Firstly, it was the duty of the officers who prepared the list and survey report to provide the copy at the spot so that no allegation of any change therein is made by the assessee at any point of time. Thereafter when the said list, statement and report were to be used against the assessee it was incumbent upon the assessing authority to himself provide copy thereof. In the present case the copies were not delivered in spite of the application for the certified copy submitted again and again. The finding of the Tribunal that the certified copies of the survey report and the list prepared, and statement recorded were not supplied to the assessee and were used for levying tax and for imposing the penalty and the conclusion that on this ground also the orders of the assessing authority is vitiated is upheld. Both the revisions are rejected and the order of the Tribunal is maintained. No order as to costs. Petitions dismissed. .;