- (1.) THIS instant revision petition is directed against the order of Rajasthan Tax Board (for short Tax Board) dated 15.12.2005 passed in Appeal No.1354/2003/Kota.
(2.) THE said appeal was admitted by this Court on 5.5.2006 on following questions of law: - (i) ''Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in opining that receiving 82 old Rajasthan Sales Tax paid television sets in exchange of new Rajasthan Sales Tax paid Akai television sets receiving only differential amount as per scheme were the purchases made by the petitioner from the customers? (ii) Whether under the facts and circumstances of the present case the Hon'ble Rajasthan Tax Board is correct in holding that the transaction of exchange of the old television sets with the new television sets and only charging differential amount as per the schme, is a transaction of sale? (iii) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in ignoring the judgment of this Hon'ble Court in the case of Assistant Commercial Taxes Officer Vs. M/s Ganganagar Bottle Supply Company wherein this Hon'ble Court have held that if the goods have already suffered tax on the initial sale the same are not liable to be taxed again even if they were purchased from casual traders or hawkers? (iv) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in upholding the levy of tax, penalty and interest which was imposed by the assessing authority while passing the assessment order dated 30.3.1999 Annexure/1 by merging the demand which was so created by the Assistant Commercial Taxes Officer, Ward 3, Circle A, Kota while passing the order dated 1.8.1997 under section 65 of the Rajasthan Sales Tax Act and which was so upheld by the Deputy Commissioner (Appeals) vide order dated 10.6.2003? (v) Whether under the facts and circumstances of the present case whether the view taken by the Deputy Commissioner (Appeals) in the Rajasthan Tax Board that though in the assessment order was passed ex -parte on 30.3.1999 on the basis of the figures submitted by the petitioner in ST 5A yet creation of additional demand by merging the order of the Assistant Commercial Taxes Officer dated 1.8.1997 passed only under section 65 of the Rajasthan Sales Tax Act, 1994 is correct or that the respondent Commercial Taxes Officer could have merged the order dated 30.3.1999 only after issuing the notice under section 29(7) of the Rajasthan Sales Tax Act? (vi) Whether under the facts and circumstances of the present case the Hon'ble Rajasthan Tax Board is correct in upholding the levy of tax of Rs. 74,500 on estimated amount of Rs. 7,45,000 when in fact all the 82 television sets were purchases by the customers from registered dealers of Rajasthan? (vii) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in upholding the levy of penalty of Rs.1,49,000 which was imposed in a routine manner without alleging any mens area on the part of the petitioner when in fact, all the transactions relating to exchange of the old television sets were duly entered in the books of accounts of the petitioner? (viii) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in upholding the levy of interest of Rs.44,700 which was levied by the assessing authority while passing the impugned assessment order dated 30.9.1999 i.e. for a period anterior to the passing of the said assessment order? (ix) Whether under the facts and circumstances of the present case the Rajasthan Tax Board is correct in opining that no documentary evidence was produced by the petitioner in respect of initial purchases of 82 Rajasthan Sales Tax paid television sets when in fact, the entire purchase vouchers of the customers have been produced/presented for verification before both the lower authorities? '' The brief facts emerging on the face of record are that survey operation was carried out in the business premises of the petitioner on 23.9.1996. It was noticed by the assessing officer that the petitioner was going on with a scheme under which in lieu of old television sets, the petitioner was providing new ''Akai '' television sets. During the course of survey, it was noticed by the assessing officer that during the course of said scheme, petitioner exchanged 82 television sets and on these 82 sets, differential amount was charged from the customers. It was also noticed that the petitioner had received an amount of Rs. 7,45000/ - by way of credit notes. During the course of hearing, the petitioner was required to provide the purchase vouchers of the 82 old coloured TV sets which the assessee claimed were received in exchange, for providing new TV sets or any other evidence so as to prove that the tax was paid on such old TV sets. However, no evidence was led by the assessee with regard to the said factum. Even, it was noticed by the assessing officer that during the course of survey, neither bill books nor cash book or other record were found nor were produced later on. Accordingly, the assessing officer was of the view that the assessee had not paid purchase tax though it had issued sale vouchers with reference to the 82 TV sets. Accordingly, the assessing officer was of the view that the petitioner had knowingly hidden this fact from the department and it was only because of survey that this came to light otherwise there was every possibility of the transaction having escaped attention. Ultimately, dis -satisfied with the claim of the assessee/petitioner, the assessing officer charged an amount of Rs.74,500/ - by way of purchase tax on the value of credit notes amounting to Rs.7,45,000/ -. It was also held by the assessing officer under Section 65 of the Sales Tax Act that the assessee had concealed the factum of purchase tax and even the transaction and accordingly levied penalty under Section 65 of the Act to the tune of Rs.1,49,000/ -.
(3.) DIS -satisfied with the levy of purchase tax so also penalty, an appeal was preferred by the petitioner before the Dy. Commissioner (Appeals), who was also satisfied that the findings arrived at by the assessing officer were correct and sustained not only the levy on the purchase tax, but also imposition of penalty.;