Jainendra Kumar Ranka, J. - (1.) THE instant revision petition has been filed by the petitioner -Department under section 86 of the Rajasthan Sales Tax Act, 1994 (in short, "the Act of 1994") challenging the order dated January 30, 2008 passed by the Rajasthan Tax Board, Ajmer, in Appeal No. 3536 of 2005 by which the order passed by the learned Deputy Commissioner (Appeals) -II, Jaipur, (in short, DC(A)) dated March 14, 2005, was affirmed who had deleted the penalty imposed upon the respondent amounting to Rs. 51,586 imposed under section 78(5) of the Act. The brief facts emerging on the face of record are that on August 18, 2001 the vehicle No. HR 51 GA 0089 was checked by the Assessing Officer of the Department at check -post, Shahjahanpur. The vehicle contained glass and at the time of checking builty of Rajasthan Bombay Road Lines bearing No. 494 dated August 17, 2001, Bill No. 98 dated August 17, 2001 of Gudex Glass Industries P. Ltd., Meerut and declaration form No. ST -18A dated June 27, 1997 was found, but the declaration form was found time -barred, which according to the Assessing Officer, was in violation of rules 23 and 53 of the Rules and also violation of section 78(2) of the Act. On this basis, a notice for imposition of penalty was issued under section 78(5) of the Act. In response to the notice, one Manohar Lal Agarwal appeared and filed reply and admitted that by mistake of clerical staff the time -barred declaration form was enclosed with the documents. Taking into consideration the reply filed by the proprietor, penalty of Rs. 51,586 was imposed upon the respondent.
(2.) AGGRIEVED with the said order of penalty, the respondent preferred appeal before the learned DC(A), who was satisfied with the explanation of the assessee that mistakenly declaration form had been carried after expiry by human error and keeping in view the judgment of this court in the case of Assistant Commercial Taxes Officer, Jodhpur v. Mahaveer Chand Jain & Company : [2001] 120 STC 212 (Raj) deleted the penalty imposed by the assessing officer under section 78(5) of the Act. He also held that all other documents, bills and vouchers had been found to be in order and accepted the appeal of the respondent. Being dissatisfied with the order of learned DC(A), the Revenue Department preferred an appeal before the Tax Board, who after examining the material on record, rejected the appeal of the Department -petitioner. Hence, this revision petition.
(3.) MS . Tanvi Sahay, appearing on behalf of Mr. R.B. Mathur, learned counsel for the petitioner submitted that the declaration form No. ST 18 -A was a nullity and when declaration form which was already time -barred or carried after expiry then the said form cannot be said to be in existence at all and according to her there was clear -cut intention of tax evasion. She also submitted that the order of the Tax Board is bad, it refers to placing reliance on Full Bench order of Tax Board, in the case of Bajrang Timbers Mart... whereas, the same stand reversed by the honourable apex court in the case of Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. : [2008] 18 VST 436 (SC) : [2009] 1 SCC 308, therefore, the instant revision petition deserves to be allowed.;