Sunil Kumar Garg, J. - (1.) This revision petition has been filed by the petitioner Assistant Commercial Taxes Officer against judgment dated 30.9.2002 (Annex.3) passed by the Rajasthan Tax Board, Ajmer in second Appeal No. 118/2001 by which the learned Tax Board affirmed the judgment dated 7.8.2000 (Annex.2) passed by learned Dy. Commissioner (Appeals), Jodhpur by which the learned Dy. Commissioner (Appeals), Jodhpur allowed the appeal filed by the respondent and set aside the order dated 3.1.2000 by which the learned Assistant Commercial Taxes Officer imposed penalty of Rs. 24,531/-.
(2.) It arises in the following circumstances:- On 17.12.1999, the Vehicle No. RJ-19-G/0271 (hereinafter referred to as vehicle in question) which was carrying goods belonging to the respondent firm, was intercepted and checked by the petitioner-Assistant Commercial Taxes Officer and during checking, it was found that the declaration form ST-18A accompanied with the goods was not found completely filled up. Since the goods in transit were accompanied with the incomplete declaration form ST-18A, therefore, a notice under Section 78(5) of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as "the Act of 1994") for violation of the provisions of Section 78(2) of the Act of 1994 was issued by the Assessing Authority to the respondent-dealer as to why penalty be not imposed. A reply to the said show cause notice was filed by the respondent stating inter-alia that all papers were available at the time when the checking was made by the petitioner Assistant Commercial Taxes Officer and it was further stated that the form ST-18A was sent by the respondent duly signed to the consignee, who and transporter by mistake sent it incompletely filled in along with the goods and therefore, the form ST-18A was not found complete. It was further alleged by the respondent that it was a technical mistake and he had no malafide intention to avoid tax. After examining the matter, the Assessing Authority came to the conclusion that the respondent was guilty of violating the provisions of Section 78(2) of the Act of 1994 and consequently, the Assessing Authority through order dated 03.1.2000 (Annex.1) imposed the penalty of Rs.24,5311- on the respondent. Aggrieved from the said order dated 03.1.2000 (Annex.1), the respondent-dealer preferred an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur under Section 84 of the Act of 1994 and through judgment dated 7.8.2000 (Annex.2), the Deputy Commissioner (Appeals) allowed the appeal of the respondent and set aside the order of the Assessing Authority dated 3.1.2000 (Annex.1) holding inter-alia that no doubt the requisite declaration form ST-18A was found incomplete, but the form ST-18A was sent by the respondent duly signed to the consignor, who and transporter by mistake sent it incompletely filled in along with the goods and such mistake can be regarded as technical ones and further, since rest papers were found valid and correct ones and not bogus, therefore, in these circumstances, the Appellate Authority came to the conclusion that from the above facts, it could not reasonably be inferred that the respondent-dealer had any intention of evading tax. Aggrieved from the said judgment dated 7.8.2000 (Annex.2), the petitioner preferred appeal before the Rajasthan Tax Board, Ajmer and the Rajasthan Tax Board, Ajmer through impugned judgment dated 30.9.2002 (Annex.3) dismissed the appeal of the petitioner and affirmed the findings recorded by the learned First Appellate Authority through judgment dated 7.8.2000 (Annex.2). Hence, this revision petition.
(3.) In this revision, the main case as put forward by the learned counsel for the petitioner is that in cases when at the time of checking, the declaration form ST-18A accompanied with the goods if found incomplete, the provisions of penalty clauses embodied in Section 78(5) of the Act of 1994 for violation of the provisions of Section 78(2) of the Act of 1994 are automatically attracted and therefore, because of this fact, the impugned judgments Annex.2 dated 7.8.2000 and Annex.3 dated 30.9.2002 of First Appellate Authority [Deputy Commissioner (Appeals)], and Second Appellate Authority (Rajasthan Tax Board, Ajmer) respectively cannot be sustained and are liable to be quashed and set aside.;