Jainendra Kumar Ranka, J. - (1.) THIS revision petition has been filed against the order passed by the Rajasthan Tax Board (In short, "Tax Board") dt. 25/08/2010 by which it has affirmed the order dated 30/01/2009 of the Deputy Commissioner (Appeals) (in short, DC(A)) by which the DC(A) has deleted the penalty imposed upon the respondent assessee by the assessing officer. The brief facts of the case, emerging from the face of record, are that the respondent -assessee is a transport agency indulged in the business of carrying goods from one place to another. On 05/06/1999, goods, were being carried in Vehicle No. RJ -14 -G -7421, and was sought to be checked at the check post of Shahjahanpur border by the CTO, Anti Evasion, Alwar but the vehicle did not stop and apprehending it to be a matter of tax evasion, the vehicle was chased and then it was stopped. The driver of the vehicle was required to produce necessary bills, vouchers declaration forms and he produced GR No. 111843, 111844 dt. 31/05/1000 and alongwith these bilties, he also produced invoice No. 271 dt. 31/05/1999, 273 dt. 31/05/1999 and challan of Globe Transport Corporation bearing No. 14421 dt. 04/06/1999. The goods, i.e. 144 bundles of iron springs and 25 bundles of axles, were being sent from Khanna (Punjab) to Sarkhej (Gujarat) and on enquiry, it was conveyed by the driver (Prahlad) that he does not have permit of Gujarat. On further checking, the officers found GR No. 016232 dt. 01/06/1999; challan No. 14420 dt. 04/06/1999; GR No. 011698, 026103 dt. 27/05/1999; 026107 dt. 02/06/1999 of M/s. Globe Transport Company Pvt. Ltd. (from U.P. Border to Bhilwara, Raj.) and it was mentioned as "self". The officers also found challan No. 4 dt. 04/06/1999 from U.P. Border to Bhilwara and on this challan vehicle No. RJ -14 -G -7421 was written and it mentioned name of National Auto Store, 82, Transport Nagar, Bhilwara. In this challan, three bilties were recorded wherein it was mentioned about 20 articles of Hardware, 4 articles of motor parts, 25 bundles of axles and 144 bundles of iron springs.
(2.) FINDING the above discrepancies i.e. the vehicle not being stopped; it was not having permit of Gujarat; the vehicle not having documents relating to Bhilwara and statements of driver, the assessing officer was satisfied that there is a clear cut case of tax evasion and it was with the intention of evasion of tax that the goods were transmitted to be sent to Gujarat, but in -fact, being sent to Bhilwara with the ulterior motive and intention to evade tax accordingly, the assessing officer, being dissatisfied, issued a notice to respondent -assesses wherein the representative of the respondent -assessee appeared and produced bills, registration certificate, purchase order, affidavit of transport clerk and it was further submitted that M/s. Capital Steel and Allied Industries, Khanna (Punjab) had received orders from M/s. Gaux Automobiles, Sarkhej (Ahmadabad) and M/s. National Automobiles, Bhilwara on 10/04/1999 and 15/04/1999 respectively and since form ST -18A could not be received, the incomplete documents relating to Bhilwara were handed over to the driver, due to inadvertence by the office clerk. However, the CTO was not inclined to accept the submission of the respondent and according to the CTO, it was an afterthought and in view of the above facts and circumstances, on the discrepancies being found with the respondent -assessee, in contravention of the provisions of Section 78(5) of the RST Act, held that there was violation of section 78(5) which proves that there was tax evasion and it was with the intention of tax evasion that goods were being carried and accordingly imposed penalty @ 30% to the tune of Rs. 75,000/ - after working out the value of the said goods at Rs. 2,50,000/ - which was estimated by the Manager of the respondent -assessee, referred to herein above. Dissatisfied with the imposition of the said penalty, the respondent -assessee preferred an appeal before the DC(A) and reiterated the facts pleaded before the CTO, and further submitted that without holding the bills and vouchers to be bogus, the CTO was unjustified in holding the respondent -assessee liable for penalty. It was pleaded that there might be some discrepancy, but even than all the papers were complete in all respect and there was no question of tax evasion by the respondent -assessee. It was further submitted that no prior notice was given either to the consignor or the consignee and imposition of penalty on the respondent -assessee (transporter) is wholly unjustified. It was further claimed before the DC(A) that the CTO did not make further independent verification and merely on assumptions and presumptions, held the bills were bogus and merely on the basis of alleged statement of the driver the penalty has been imposed which is unjust & in violation of principles of natural justice as well. The DC(A) was satisfied with the facts pleaded before it and after considering the authorities, referred to by the respondent -assessee, deleted the penalty.
(3.) DISSATISFIED with the deletion of the said penalty, an appeal was preferred before the Tax Board by the petitioner -department, assailing the deletion of the penalty. The Tax Board, after hearing detailed arguments; referring to the submissions at length and after considering the authorities, sustained the deletion of penalty by the DC(A).;