V. K. SINGHAL, J. - (1.) THE assessing authority has filed this revision under section 15 of the Rajasthan Sales Tax Act, 1954, raising the following question of law arising out of the order of the Tribunal : " Whether, in the facts and circumstances, the imposition of penalty under section 22 (6) (b) of the Rajasthan Sales Tax Act was rightly set aside ?"
(2.) BRIEF facts of the case are that the business premises of the assessee were inspected on October 9, 1984 and it was found that the stock of sliver as per the books should have been 225 grams, whereas on physical verification, it was found that the assessee was having sliver of 3 kilo 102 grams and as such 2. 87 kilograms silver was found in excess. An application was obtained from the assessee on the spot, in which it was stated that the purchases have been made on the same day and, therefore, the entry could not be made in the books. A penalty of Rs. 1,999. 50 was levied. In the appeal preferred before the Deputy Commissioner (Appeals) it was submitted that it was specifically stated in the letter written that the goods were received on that very day and the bill was not received and the other partner of the firm was not present at the spot. This fact was also mentioned in the application written on October 9, 1984. It was also found that the order was not signed by the assessing officer and the signature on the order sheets shows that blank signatures were obtained. The compliance of the provisions of rule 58 was not made and it has not been mentioned as to from which place the goods have been received. No inspection report was found on the file and there were no two independent witnesses. The Deputy Commissioner (Appeals) observed that the order sheet has not been signed at two places by the assessing authority and there are no signatures existing on the order sheets where the goods were released. In the seizure memo, it was found that the addresses of the witnesses have not been mentioned. The first witness was of Bassi and in respect of the second witness it has not been mentioned as to what is the exact address of Ghat-gate Bazar where the witness is residing and the Fard checking is not signed by any witness. The provisions of rule 58 were hold not complied with and it was held that the enquiry proceedings were concluded in a day and the purchase was made on the same day and the other partner was also not present. Therefore, levy of penalty was quashed. In appeal before the Sales Tax Tribunal, the learned Member has held that so far as fabrication in the record is concerned, when the file was produced before the appellate authority it was not having any signature of the assessing authority and now the signature exists and, therefore, the head of the department shall make necessary enquiry and shall take steps on the basis of such enquiry as to how the record was changed. Regarding merits of the case, the learned Member of the Sales Tax Tribunal has held that the order of the appellate authority does not require any interference and the order setting aside penalty was upheld. The submission of Mr. Bapna is that since the application was submitted by the assessee that he is not in a position to produce the bills, the levy of penalty is justified. I have considered over the matter. The entire record of the proceedings shows that proceedings were conducted in a very hasty manner. The circumstances were not existing so that the entire proceedings could have been completed within a day. Before penalising a person, it was imperative that the assessing authority should have conducted an enquiry and then should have penalised. Providing reasonable opportunity is an essential element for due compliance of law and is also one of the requirements of the principles of natural justice. Compliance of law is more expected from the assessing authority and if the provisions of rule 58 have not been complied with, then the Deputy Commissioner (Appeals) and the Sales Tax Tribunal were justified in quashing the penalty. The assessing has a right to challenge the penalty proceedings where all these questions may crop in as to when the assessing authority reached the shop, which are the places searched and from where what articles are found, who are witnesses, what is their addresses and the like. If lacuna is left by the assessing authority, it may be because of ignorance of law or may be to help the assessee so that the collection of the amount will be shown in their target and the assessee will also be happy to get refund of the same subsequently. It will be for the Commissioner, Commercial Taxes to issue proper instructions as to in what manner and in which cases there should be the search of the shop, physical stock taking, the manner in which it is to be taken, the documents to be prepared, the time when the officer has reached and left the business premises, the reporting of the matter to the higher authorities and the like matters, by which a tax evader is not getting benefit on account of laches of the assessing authority and due taxes and penalties come to the State Government. The Sales Tax Tribunal was justified in upholding the order setting aside penalty. Consequently, the revision petition having no force is hereby dismissed. Petition dismissed. . ;