V. K. SINGHAL, J. - (1.) THIS revision petition has been filed against the order of the Rajasthan Sales Tax Tribunal dated October 18, 1989, by which penalty of Rs. 13,275. 60 levied under section 22a (7) of the Rajasthan Sales Tax Act, 1954, was set aside. The following question of law has been raised arising out of the order of the Tribunal : " Whether, in the facts and circumstances of the case, the Tribunal was justified in setting aside the levy of penalty under section 22a (7) of the Rajasthan Sales Tax Act ?"
(2.) ON January 2, 1985, truck No. PJP 7241 was checked at Vishwakarma Industrial Area, Jaipur. The statement of the driver was recorded. It was that the goods covered by goods receipt (bilty) No. JPR 2431 dated January 2, 1985, were sent from Jaipur to Bombay by M/s. Yaswant & Company, Atru, as consignor. The name of the consignee was shown as Nilesh Kumar Vinod Chand, Bombay. The Assistant Commercial Taxes Officer, Anti-Evasion, found that 252 bags of dhania weighing 103 quintals and 32 kg. have been shown and Rs. 3,415 was charged as freight. Along with the bilty, there was a letter-head in which duplicate bill No. 16 dated December 31, 1984, was written initially which was changed to January 2, 1985. The quantity of bags and the weight thereof tallied with the bilty. The value of the goods was shown as Rs. 66,378. The Assistant Commercial Taxes Officer found that the signatures of Shri Jaswant Rai on the cutting of date as mentioned above do not tally with the signature, which he has put at other places. The truck driver informed that the goods have been lifted from M/s. Bhagwati Udyog Cold Storage, Vishwakarma Industrial Area, Jaipur, but no document of M/s. Bhagwati Udyog Cold Storage was produced. Copies of documents were seized and notice was issued on the spot. The driver was directed to produce the bill and other documents with regard to the transactions from M/s. Bhagwati Udyog Cold Storage. ON January 3, 1985, accountant of the firm Yaswant & Company appeared and produced a copy of letter-head in which the value of the goods was shown at Rs. 66,278. The main point which was taken into consideration for levy of penalty by the Assistant Commercial Taxes Officer was that there was a difference in the weight as according to the bilty the weight was shown as 103 quintals 32 kg. while according to the bill it was 103 quintals 21. 5 kg. Another factor which was taken into consideration was the difference of Rs. 150 between the copy of the document produced on January 3, 1985 and the copy which was found at the time of initial checking. The reason of different of signatures was also explained by the accountant by showing that when date was changed by him, he himself has corrected the date as January 2, 1985 and singed himself. A copy of the bill of Gopi Chand Sardarmal bearing No. 5177 dated January 2, 1985 which was mentioned in the letter was also not produced. On enquiry from M/s. Gopi Chand Sardarmal & Sons the Assistant Commercial Taxes Officer found that they have entered into a contract for sale of 252 bags of dhania, which was sold against D form and challan and bill No. 5177 dated January 2, 1985 was issued in respect thereof. It appears that on the instructions of the Deputy Commissioner, Anti-Evasion, Jaipur dated January 3, 1985 it was informed that bill has not been issued by the firm. Enquiry was also made on January 5, 1985 from M/s. Bhagwati Udyog Cold Storage and they have shown that the goods have been despatched by challan No. 1309 dated December 31, 1984 and challan No. 1316 dated December 31, 1984 vide truck No. PJP 7241. No goods were shown to have been despatched on January 2, 1985. The Assistant Commercial Taxes Officer, Anti-Evasion, came to the conclusion that since no documents were produced in respect of date of January 2, 1985, therefore, there is evasion of tax. The copies of bills which were produced were considered to be after-thought and penalty was collected in cash. The appeal preferred by the assessee was also rejected. When the matter was taken up before the Sales Tax Tribunal, it was explained that after entering into contract the assessee has sent his muneem with pro forma invoices of 252 bags of dhaniya dated December 31, 1984 in the name of Nilesh Kumar Vinod Chandra, Bombay. As the truck No. PJP 7241 was under repair from December 28, 1984 to January 2, 1985, the goods were not loaded on December 31, and were despatched on January 2, 1985. These were same goods for which contract was entered into on December 31, 1984 and the entry was existing in the record of Bhagwati Udyog Cold Storage. The minor difference in the weight was stated on account of difference which normally comes in different weighing bridges. The Tribunal found that a contract was entered into on December 31, 1984 and the goods were despatched on January 2, 1985 and the basis of the difference in the weight of about 10. 5 kg. was because of actual weighment. The difference of Rs. 150 in the bill was considered as relating to the insurance expenses and if was found that the Assistant Commercial Taxes Officer, Anti-Evasion, has not proved that there was any difference between the transactions which are alleged to be of two dates. The penalty was set aside. I have considered over the matter. In a case where penalty under section 22a (7) is being levied, the burden is to be discharged by the assessing authority. It is not for the assessee to prove his innocence. In the present case, when enquiry was made from the seller of the goods to the assessee, the entries were found in the books of accounts and, therefore that should have been the end of the matter. Even where no documents are found or any discrepancy is found in any document, it is expected that the assessing authority should immediately take steps of verifying from the books of the consignor as well as other related persons to find out as to what is the correct position. It is not in this manner that the goods are being seized and kept for number of days and then assessee is asked to explain his conduct and then finding is given that it is afterthought. The assessing authority must himself find out as to whether there is any contravention of the provisions of the Act and should not be guided with the directions of the Deputy Commissioner as it appears in the present case. After verification of the entries from M/s. Gopi Chand Sardarmal & Sons, when the Assistant Commercial Taxes Officer himself found that the entries were existing, there was no reason to disbelieve those books of accounts which were maintained in the regular course of business. The promptness in checking is an efficiency in detecting evasion. The assessee had the documents, which were produced at the time of checking and the Sakes Tax Tribunal found them as correct documents and not as false one. Even the main reason of difference of Rs. 150 which has been explained as pertaining to the insurance charges and the difference of date in the bill and bilty would not make the documents as false one. A person, who is effecting sale of 103 quintals would not try to evade the tax on 10. 5 kg. This is only because of different weighing bridges. The transporter, even otherwise takes the weight in round figure. Since the weight in the different weighing bridges is at a different figure, which is not even 1 per cent of the total weight, but is. 01 per cent would not lead to any conclusion that thee was any attempt on the part of the assessee to evade tax. In these circumstances, no case is made out to interfere with the order passed by the Tribunal. The revision petition is dismissed accordingly. Petition dismissed. .;