J.K. Ranka, J. - (1.) Instant civil sales tax revision petition has been filed by the petitioner under Sec. 86 of the Rajasthan Sales Tax Act, 1994 against the order dated May 16, 2008 passed by the Rajasthan Tax Board, Ajmer in appeal No. 861/2006/Sawai Madhopur. The brief facts which can be noticed are that the respondent -assessee was carrying 80 bags of gum (guar) in truck bearing No. RJ -25 -B -0488, which was sold to M/s. Jagdish Prasad Ram Dayal Khandar, Sawai Madhopur, no bills and vouchers were found at the time the vehicle was intercepted and penalty was imposed at Rs. 3,26,440. The penalty order was assailed before the Deputy Commissioner (Appeals) who deleted the penalty on the premise that though the date was given on October 4, 2002 but the penalty itself was imposed on September 28, 2002 and such imposition of penalty was illegal as having been imposed prior to the date fixed. On a further appeal filed by the Revenue, Tax Board also came to the said conclusion that the penalty could not have been imposed on September 28, 2002 when even the date of notice for filing reply or appearance was October 4, 2002.
(2.) Counsel for the appellant contended that the finding of the Tribunal is perverse. He further contended that it is a case of penalty and mens rea is not essential and necessary documents were not found with the vehicle and therefore, the penalty was rightly imposed.
(3.) I have considered the arguments advanced by the counsel and in my view, though mens rea may not be essential in the light of the judgment of the Larger Bench of this court in the case of Assistant Commercial Taxes Officer, Flying Squad, Zone -I, Jaipur v/s. Indian Oil Corporation Ltd. : [2015] 82 VST 200 (Raj). However, the facts are very clear on record that no penalty could have been imposed without waiting for the date of the notice itself of October 4, 2002. Admittedly, both the appellate authorities have come to a definite finding of fact that the show -cause notice was issued on September 27, 2002 for hearing on October 4, 2002 but the penalty order was itself passed on September 28, 2002 on the driver of the vehicle. In my view, I also uphold the finding of the Tax Board that the officer imposing penalty ought to have waited at least till October 4, 2002 and, if on the said date fixed by the assessing officer, there was no response then and only thereafter the assessing officer could have proceeded to pass an ex parte order and may have imposed penalty.;