Jainendra Kumar Ranka, J. - (1.) THIS sales tax revision petition is directed against the judgment of the Rajasthan Tax Board in Appeal No. 1075 of 2006 by which the Tax Board, upheld the order passed by the Deputy Commissioner (Appeals), Ajmer, who held that in the case of respondent -assessee no surcharge is leviable on the exemption fee paid by the respondent -assessee for obtaining exemption certificate (EC) as a works contractor. The brief facts emerging on the face of record is that the respondent -assessee is carrying on the business of a contractor and availed of exemption after paying exemption fee as per the provision of the Act, however, while there is no dispute in so far as the levy of exemption fee is concerned but the assessing officer -petitioner in addition to exemption fee also levied surcharge of 12 per cent on such exemption fee when as per the respondent he was not liable for any surcharge.
(2.) DISSATISFIED with the said imposition of the surcharge the respondent -assessee carried the matter in appeal before the Deputy Commissioner (Appeals) who deleted the surcharge. Dissatisfied with the said deletion the petitioner -Department carried the matter in appeal before the Tax Board and the Tax Board has also upheld the deletion of levy of surcharge following the view of the Tax Board in earlier orders and as per plain language of section 2(41) where tax has been defined. Hence this revision petition. Shri R.B. Mathur, learned counsel for the petitioner, submits that the respondent was liable to surcharge. He also drew the attention of this court on the plain language of section 2(41) of the Act and according to him surcharge being mandatory and exemption fee being in the nature of other levy as defined in section 2(41), therefore, the levy was in accordance with the provisions of the Act. In support of the contention the learned counsel also relied upon the judgment rendered by the honourable apex court in the case of Deputy Commissioner of Sales Tax v. Aysha Hosiery Factory (P.) Ltd. reported in : [1992] 85 STC 106 (SC) and of honourable Kerala High Court in the case of Indian Oil Corporation Ltd. v. State of Kerala reported in : [2011] 42 VST 206 (Ker), and accordingly submitted that the order of the Tax Board needs to be reversed.
(3.) NONE appeared on behalf of the respondent despite issue of notice.;