- (1.) INSTANT Sales Tax Revision Petition under Section 86 of Rajasthan Sales Tax Act,1994 is directed against the order passed by the Rajasthan Tax Board Ajmer dt.02/12/2010 in appeal No. 737/2002/Bharatpur whereby the appeal filed by the revenue was dismissed.
(2.) AS per the material available on record, it transpires that a survey operation on the premises of the respondent -assessee firm came to be conducted on 02/05/1997 in the presence of Mr. Satish Chandra Agarwal, who happens to be partner of the firm. The assessee firm is dealing in mustard, mustard oil and Khal. On verification mustard, mustard oil and Khal having been checked with the stock register and physical stock, the authorized officer found difference of about 46 Quintal 54 Kg. of mustard oil in excess and it was observed by the Assessing Officer at the time of assessment that stock to the extent of 46 Quintal 54 Kg. was undisclosed and its value was computed at Rs.1,25,658/ - and accordingly penalty @ 20% under section 77(8) was imposed at Rs.25,132/ - vide order dt.02.05.1997, which came to be assailed by the assessee firm in appeal before the Dy. Commissioner (Appeals) who after going through the material available on record was satisfied with the explanation so offered by the assessee firm and observed that the stock was not verified properly and nothing was placed on record to justify as to how such huge stock of 384 Quintals of mustard, 442 Quintals of mustard oil and 252 Quintals of Khal came to be measured and that apart it was also not pointed out by the Assessing Officer as to what method was adopted for measuring the items found at the surveyed place and held the penalty to be improper and illegal and deleted the same vide order dt.23.12.2001.
(3.) ON a further appeal being preferred by the Revenue before the Tax Board, the order of the Dy. Commissioner (Appeals) was upheld. Hence this revision petition. Counsel for the petitioner contended that at the time of survey of the firm not only its partner but two independent witnesses were also present in whose presence the stock was measured and actual undisclosed stock was noticed to the extent of 46 Quintals 54 Kg of mustard oil. She further contended that at the time of passing of the order by the Assessing Officer, no objection about Rule 50 was raised by the assessee and it is only at a later point of time, this plea was raised before the Appellate Authority, which is not permissible. She further contended that when the stock was physically weighed in the presence of the partner and two independent witnesses, later on it could not have been challenged and contended that view of both the two learned appellate authorities below, i.e. the Dy. Commissioner (Appeals) as well as the Tax Board is improper and contended that substantial questions of law arise out of the order of the Tax Board.;