KOTHARI, J. - (1.) THIS revision petition is directed against the order of Tax Board dt. 3. 8. 2004 rejecting the Revenue's Appeal No. 202/2003/dungarpur CTO Dungarpur vs. M/s. Juharmal Badri Lal, Devli, by which the Tax Board upholding the order of learned D. C. (Appeals) held that no penalty under Section 78 (5) of the Act was liable to be imposed on the respondent-assessee.
(2.) THE Assessing authority - learned CTO, Anti Evasion, Dungarpur imposed a penalty of Rs. 23,618/- @ 30% of the value of the goods of Rs. 78,725/- under Section 78 (5) of the Act on the ground that the goods in question namely 100 bags of wheat being carried by Truck No. GJ-9t/8473 on 22. 11. 2001 and along with the said transit, two sale bills, one bearing No. 943 dated 21. 11. 2001 for Rs. 78,725/- for 100 bags of wheat of the respondent-assessee to M/s. Ambika Fine Food Eader, Gujarat was found and also another Bill bearing hand written No. 940 of the same date in favour of the same party, of the same amount and same quantity of the wheat was also found. On the said bill, which is produced as Annexure-1 with the revision petition, the bill No. 940 was hand written. THE bilty of the transport was also found along with the goods. A case under Section 78 (5) of the Act was made out against the respondent - assessee on the ground that in view of two bills for the same goods having been found,there was an intention to evade the tax under the Act and, therefore, the respondent - assessee was liable to pay the penalty @ 30% of the value of the goods of Rs. 23,618/ -. The assessee in pursuance of the notice under Section 78 (5) of the Act filed a reply thereto vide Annexure-2 dated 21. 11. 2001 in which the accountant (Munim) of the said firm appeared before the Assessing authority and explained that by mistake two bills bearing No. 940 and 943 of the same amount of Rs. 78,725/- for 100 bags of wheat have been issued and he produced before the said authority the regular bill book and letter pad. Admitting the aid mistake of making two bills, a request was made to the Assessing authority to decide the case on the same day. Treating the said explanation for reply as admission of guilt of evasion of tax, the assessing authority imposed the said penalty of Rs. 23,618/-, which the assessee appears to have paid for release of his goods. Thereafter, the assessee approached the first appellate authority DC (Appeals) Kota who by a detailed order allowed the appeal of the assessee and quashed the said penalty under Section 78 (5) of the Act. The learned DC (Appeals) in his order found that the bill No. 940 dated 21. 11. 2001 was found to have been issued in favour of the some local dealer of Devli for Rs. 16,114/- for the sale of wheat and Jow by the said bill, whereas the bill No. 943 dated 21. 11. 2001 was issued in favour of the said purchasing dealer M/s. Ambika Fine Food, Eader, Gujarat which was found which the said transit. The learned DC (Appeals) found that the second bill bearing hand written bill No. 940 was inadvertently written as 940 and since the regular bill No. 943 for the said sale was issued and which was found during the transit at the time of the checking with the bilty relating to the said goods i. e. 100 bags of wheat, no penalty under Section 78 (5) of the Act was imposable. Accordingly, the said penalty was set aside. The Revenue aggrieved by the said order, approached the Tax Board by second appeal for restoration of said penalty which was rejected by the Tax Board by the impugned order dated 3. 8. 2004 in which the Tax Board accepted the contention on the part of the assessee that writing of bill No. 940 is the hand writing on the duplicate bill was a clerical error and same did not disclose any intention on the part of the assessee respondent to evade the tax and the penalty was not justified. Being aggrieved by the said order of the Tax Board, the Revenue is before this Court in revisional jurisdiction under Section 186 of the Act.
(3.) HEARD learned counsel for the Revenue. Section 78 (2) of the Act, which lays down the requirements for certain documents to accompany the goods in transit, reads as under: Section 78 (2) : The driver or the person incharge of a vehicle or carrier or of the goods in movement shall (a) carry with him a goods vehicle record including challans and bilties", bills of sale or despatch memo and prescribed forms,. . " It is not in dispute in the present case that bill and bilty relating to the goods namely 100 bags of wheat were found with the Truck in question and the same were produced at the time of checking. No other declaration was either required or produced and the entire case of the revenue is that since a second bill bearing No. 940 in hand writing was also found, it gave rise to intention to evade tax on the part of assessee and, therefore, penalty under Section 78 (5) of the Act was justified. ;