Jainendra Kumar Ranka, J. - (1.) THE instant sales tax revision petition arises out of the order dated September 19, 2007, passed by the Rajasthan Tax Board, Ajmer, who had sustained the order passed by the Deputy Commissioner (Appeals) who had deleted the penalty of Rs. 42,636 imposed on the respondent -assessee. Brief facts as emerging on the face of record are that on October 7, 1998, goods, namely, 106 bags of mustard were being transported in vehicle bearing No. RJ -23/G -0286. The said vehicle was checked by the officer at Kishangarh by -pass. On checking by the officer, the driver produced bilty No. 11598 dated October 6, 1998 of Dashmesh Golden Transport Company as also bilty No. 213 dated October 6, 1998 of M/s. Shikhar Kailash Chand Jain amounting to Rs. 2,13,179.55 and further enquiry was made from the driver and on account of some contradictions, issued show -cause notice to the driver. The representative of the assessee -respondent appeared before the assessing officer and it was conveyed to him that the goods have been purchased from agriculturist Shri Ganesh Lal through mandi samiti. He also produced cash book and stock register and submitted that the goods are duly recorded in the books of accounts and therefore, there is no justification for imposition of said penalty. However, the version of the representative of the respondent -assessee was disbelieved and penalty as aforesaid was imposed.
(2.) DISSATISFIED with the said order, the assessee -respondent carried the matter in appeal before the Deputy Commissioner (Appeals) who vide order dated May 1, 1999 allowed the appeal and deleted the penalty. Being dissatisfied with the said deletion, the petitioner -Department carried the matter in appeal before the Tax Board who vide order dated September 19, 2007 dismissed the appeal preferred by the petitioner -Department. Hence, this revision petition. Counsel for the petitioner, Shri R.B. Mathur, submitted that since there were contradictory submissions made by the driver as also the representative later on, therefore, the assessing officer was correct in levying the penalty. Since there was contradiction, therefore, correct conclusion was made by the assessing officer that the documents, bills, etc., are forged, fabricated and after -thought. He submitted that the Tax Board was unjustified in affirming the order passed by the Deputy Commissioner (Appeals) who deleted the penalty. He submitted that under section 78(5), the penalty had rightly been imposed as the assessing officer was requested to decide the issue of penalty on the spot. Therefore, he pleaded that the penalty be restored and the order of the Tax Board be reversed.
(3.) SHRI Vinod Kumar Jain, the learned counsel for the respondents, submitted that in this case, all necessary documents were produced even before the assessing officer (flying squad) and the goods were purchased through mandi samiti and was duly entered in the cash book as well as in the stock register, therefore, there was no occasion to disbelieve the version of the respondent. He further submitted that it was prima facie to be proved that the goods were recorded in the books of accounts and penalty cannot be imposed on mere conjectures, surmises on suspicions and doubts. He further pleaded that both the appellate authorities have come to a finding and it is basically a finding of fact and no question of law is involved. Thus, he pleaded for dismissing the present sales tax revision petition.;