- (1.) This instant revision petition is directed against the order of the Rajasthan Tax Board dated January 15, 2009 in Appeal No. 1495 of 2006 by which penalty under section 77(8) of the Rajasthan Sales Tax Act, 1994 was deleted. This petition was admitted on the following question of law on March 20, 2013: (i) Whether, in the facts and circumstances of the case, the Rajasthan Tax Board was justified in law in deleting the penalty under section 77(8) of the Act of 1994 when the assessee himself admitted that the goods are unaccounted and there was no procedural infirmity? (ii) Whether, in the facts and circumstances of the case, the Rajasthan Tax Board was justified in law and has not acted perversely in deleting the penalty under section 77(8) despite of admission of the assessee with regard to goods being unaccounted solely on the basis of version which is an after thought? The brief facts as emerging on the face of record is that a survey was undertaken by the officers of the petitioner-Department at the business premises of the respondent-assessee on December 20, 2000, wherein the officers of the petitioner-Department found silver bar weighing 32.895 kilogram in a bag which was neither accounted for in the regular books of accounts nor the respondent-assessee was able to produce purchase bill/voucher relating to the aforesaid silver bar. Notice under section 77(8) of the Rajasthan Sales Tax Act, 1994 was issued to the respondent on the same date for hearing on January 3, 2001 desiring the respondent to produce the supporting bills and vouchers or other acceptable evidence to prove the purchase of the aforesaid silver bar.
(2.) However, the respondent appeared before the assessing officer on the same date and admitted that the said silver bar is neither recorded/accounted for in the books of accounts nor bill is available. Sh. Rajendra Kumar Agarwal the proprietor also requested that an order may be passed today itself and further pleaded that he is ready to deposit the penalty and the goods may be released against payment of the penalty amount.
(3.) Finding no alternative and the admission by the respondent-proprietor Shri Rajendra Kumar Agarwal and his request in writing and clear-cut admission by the respondent-assessee, penalty at Rs. 28,750 was imposed. However, despite of clear admission, an appeal was filed before the Deputy Commissioner (Appeals) (in short, "the DC (A)") who after analysing the facts and circumstances sustained the penalty.;