Vijay Bishnoi, J. - (1.) THIS revision petition has been preferred by the petitioner under section 86 of the Rajasthan Sales Tax Act, 1994 (for short 'the Act of 1994' hereinafter) against the judgment dated 28.10.2010 passed by the Rajasthan Tax Board, Ajmer (for short 'the Tax Board' hereinafter), whereby the orders passed by the Assessing Authority as well as the Deputy Commissioner (Appeals), 1st, Commercial Taxes, Jaipur (for short 'the Deputy Commissioner' hereinafter) dated 19.01.2005 and 24.01.2006 respectively have been quashed and set aside. Brief facts of the case are that on 15.01.2005, vehicle No. RJ14 -1G -7915 was checked near Balicha bypass and it was found that the transit pass for Invoice No. 06367 dated 13.01.2005 for the value of goods amounting to Rs. 4,06,041.00 was not obtained. The Assessing Authority had found that since the transit pass had not been prepared from above mentioned consignment, there was an intention to evade the tax duty and as such, the Assessing Authority had imposed the penalty under section 80 of the Sales Tax Act, 1994 (for short 'the Act of 1994' hereinafter) vide order dated 19.01.2005. The respondent had challenged the said order of the Assessing Authority before the Deputy Commissioner (Appeals) by way of an appeal, which came to be dismissed by order dated 24.01.2006, while confirming the order passed by the Assessing Authority.
(2.) BEING aggrieved with the orders dated 24.01.2006 and 19.01.2005, the respondent has preferred an appeal before the Tax Board and the Tax Board vide order dated 28.10.2010, has allowed the appeal while observing that the goods transported in the vehicle No. RJ14 -1G -7915 had been passed out of State of Rajasthan and had not been sold in the State of Rajasthan and, therefore, the action of the Assessing Authority of imposing penalty under section 80(2) of the Act of 1994 was not proper. The petitioner has challenged the order dated 28.10.2010 passed by Tax Board on various grounds in this revision petition. It is contended by the learned counsel for the petitioner that as per the provisions of sub -section (2) of section 80 of the Act of 1994, once it is proved that the transit pass has not been obtained for the goods passes through the State of Rajasthan, then it will be presumed that such goods have been sold within the State by the owner, the driver or the person in -charge of the vehicle or the carrier or the goods. It is further contended by the learned counsel for the petitioner that there was no dispute to the fact that the respondent firm, or the driver of the vehicle, which was transporting the goods of the respondent -firm, have not obtained transit pass in respect of the goods transported vide Invoice No. 06367 dated 13.01.2005 and, therefore, the Assessing Authority has not committed any illegality in levying the penalty in view of presumption attached to the provisions of sub -section (2) of Section 80 of the Act of 1994. However, the learned Tax Board has illegally set aside the same without taking into consideration of this aspect of the matter and, therefore, the order passed by the Tax Board dated 28.10.2010 is liable to be set aside.
(3.) PER contra, learned counsel for the respondent has supported the judgment passed by the learned Tax Board and has argued that when it is proved that the goods have not been sold in State of Rajasthan and the consignment had been passed out from State of Rajasthan, then no penalty can be imposed as envisaged under section 82 of the Act of 1994.;