Jainendra Kumar Ranka, J. - (1.) INSTANT revision petition has been filed by the petitioner under section 86 of the Rajasthan Sales Tax Act, 1994 (in short, "the Act of 1994") challenging the order dated January 3, 2008 passed by the Rajasthan Tax Board, Ajmer, in Appeal No. 845 of 2007 whereby the order passed by the learned Deputy Commissioner (Appeals) -II, Jaipur (in short, "the DC (A)") dated March 22, 2007 and the order dated January 19, 2004 of learned assessing officer had been quashed, set aside and deleted the penalty. The brief facts emerging on the face of record is that a survey took place at the business premises of the respondent -assessee on January 19, 2004 and at the time of survey one Shri Umesh Roheda, the partner of the respondent partnership firm, was found at the business premises. The respondent -assessee is dealing in the business of bakery and general confectionery products. During the course of survey at the business premises, no books of accounts, bills vouchers and other supporting material were found.
(2.) IT has been stated by the assessing officer that despite ample opportunities having been provided to the assessee, he could not produce the books of accounts and supporting material. In one corner of the business premises, the survey team found some tins and packed material in cartons. Enquiry was made about the said goods, and the assessee was asked to produce copy of the bills/builties and also the other supporting material as also books of accounts but during the course of survey, neither the books nor the bills and vouchers as stated above, were produced by the respondent -assessee. The assessing officer, granted time to the assessee to produce the bills/vouchers and other material in support of his defence and also issued notice to show cause for January 27, 2004 for production of necessary account books and other bills, builties and vouchers as also other supporting material to explain the position with regard to excess stock available in the premises. It is stated in the assessment order that the actual list was prepared not only in the presence of the partner of the respondent -firm but also in the presence of two witnesses and according to the asses -see, the value of the goods was assessed to be at Rs. 1,53,750 and agreed to by the respondent. Despite opportunities having been provided to the respondent -assessee, the respondent -assessee gave explanation on spot and admitted that neither the bills nor the builties are available and the goods in dispute had been received from outside the State without bills and admitted the mistake. He himself, did not avail of opportunity and requested for closing the proceedings then and there. However, he pleaded for imposition of penalty, if any, in accordance with law. The petitioner vide order dated January 19, 2004 imposed penalty at Rs. 46,125 on Rs. 1,53,750 at 30 per cent of the value of the goods under section 78(5) of the Act. Being dissatisfied with the order passed by the learned assessing officer, an appeal was preferred before the DC (A), wherein it was submitted that the stock was taken on estimate basis; the address of the witnesses were not shown and that there was violation of provisions of rule 50 and, therefore, the penalty was wrongly levied/imposed. It was also claimed that the respondent was pressurised to surrender the same and also furnished an affidavit before the DC (A) however, the learned DC (A) was not satisfied with the explanation offered by the respondent -assessee and clearly observed in the appellate order that there is no violation of rule 50 as it has been duly signed and sealed by two witnesses and valuation was also admitted having been done in the presence of partner and two witnesses. The learned DC (A) also observed that even before him, the DC (A), neither bills, builty and vouchers nor even the books of accounts were produced and further that the respondent had admitted and there is clear confession of mistake committed by the respondent -assessee with regards to unaccounted stock of goods without having bills, builties and vouchers. Accordingly, the DC (A) in the facts and circumstances of the case, dismissed the appeal and sustained the penalty.
(3.) BEING aggrieved with the order passed by the DC (A), appeal was preferred by the assessee before the Tax Board, who after going through the material on record, reversed the findings arrived at by the learned DC (A) and accepted the explanation given by the respondent -assessee. It was observed by the Board that some action ought to have been taken by the DC (A) on the affidavit having been filed by the assessee before him. It was also observed by the Tax Board, that there is no finding with regard to violation of rule 50 and according the penalty so imposed by the assessing officer and confirmed by the DC(A) was deleted.;