- (1.) THE assessing authority has filed this revision petition under section 15 of the Rajasthan Sales Tax Act, raising following questions of law arising out of the order of the Sales Tax Tribunal. (i) Whether in the facts and circumstances of the case, the Tribunal was justified in setting aside the levy of tax and interest upon the non-petitioner and in remanding the case of the assessing authority? (ii) Whether in the facts and circumstances of the case, penalty under section 16 (1) (i) of the Act was rightly imposed by the Assessing Authority?
(2.) BRIEF facts giving rise to the present revision petition are that a survey was conducted of the business premises of the assessee on 17. 10. 84 by the Anti Evasion Wing, and it was found that certain sales have been shown as tax paid, where as the assessee had no stock of the tax paid goods on 6th April 1983, which was relevant date on the basis of which the figures were taken. The Assessing Authority framed an assessment under section 10 (4) and came to the conclusion that the sales of tax paid goods is more in comparision to the opening stock and purchases till 6. 04. 1983 and, therefore, the said sale should be presumed only out of the taxable stock which was with the assessee. The sale of Sarason of Rs. 1,02, 000/- and that of Dhania of Rs. 4,0000/-were estimated and transferred to the taxable turn over. Tax @ 4% was levied and penalty of Rs. 11,000/- was levied under section 16 (1) (i) of the Act. The assessee wherein has contended that tax of Rs. 4324. 84 was deposited by the assessee and that a sum of Rs. 1410/- was collected at the check post and thus out of the total liability of Rs. 5680/- the adjustment should have been given of the amount deposited or collected from the assessee. The Deputy Commissioner (Appeals), up held the levy of tax and interest. But so far as the question of penalty was concerned, it was set aside and it was held that there is no mela fide intention on the part of the assessee. The matter was taken up before the Sales Tax Tribunal by the assessee by way of second appeal and by the assessing authority by way of cross objection and the Sales Tax Tribunal came to the conclusion that there is no difference in the purchase and sale as at the end of the year and the levy of tax and interest was set aside and the order of the Deputy Commissioner (Appeals), setting aside the penalty was up held. The submission of Mr. Bafna on behalf of the Assessing Authority is that the Sales Tax Tribunal was not justified in taking into consideration the transaction of the entire year and there is no double taxation in respect of the commodities sold. It is an individual transaction which has to be examined as to whether it is liable to tax or not. Since the transactions were not shown as taxable and were not proved to be tax paid, the levy of penalty was also justified. The argument of Mr. Gupta on behalf of the assessee is that he has in fact paid the tax on the disputed transactions upto 6. 04. 1983 and the tax can not be levied again on the same transaction.
(3.) I have considered over the matter. Section 3 is a charging section which creates the charge and liability of a dealer in respect of sales or purchases, if they exceed the limit prescribed in the said section. According to section 2 (s), 'taxable turn over' has been defined to mean that part of the turn over which remain after deducting therefrom aggregate amount of the sales of goods: - (i ). . . . . . . (ii) Which have already been subjected to tax under this Act. From the definition of "taxable turn over" the goods which have already been subjected to tax under this Act has to be excluded and the burden to prove that the goods have already suffered levy of tax, under section 5 (D) of the Rajasthan Sales Tax Act, is on the assessee. According to the definition given to "turn over" under section 2 (s) the turnover has been defined as under:- "turnover means, the aggregate of amount of sale price received of receivable by dealer in respect of the sale of supply or goods in the carrying out of the any contract. " From the perusal of the above definition it would be evident that the turnover refers to the particular transaction of sale and so is the position of taxable turn over where if the goods sold have already been subjected to tax under the Act then only that can be excluded from the definition of taxable turnover. On the proper interpretation of the provisions of the Rajasthan Sales Tax Act, it would therefore, mean that the assessee must have a stock of tax paid goods on the day when the sale of tax paid goods is claimed to be effected. In the absence of having any stock on that particular day, the sale cannot be made in advance in anticipation that subsequent purchases can be made of tax paid goods and the same could be adjusted from such sales already claimed as tax paid. If this interpretation is taken then the revenue would not only be deprived of its legitimate tax at proper time but, it may result in evasion of tax if the assessing authority fails to thoroughly examine the books at the time of assessment with regard to the particular date and the position of tax paid purchases, and sales on such date. ;