J.K. Ranka, J. - (1.) The instant petition is directed against order dated May 12, 2010 passed by the Rajasthan Tax Board, Ajmer, in Appeal No. 1148/2006/Ajmer. The brief facts noticed are that a survey operation came to be conducted on the premises of the petitioner on January 2, 1999 when Kaluram Nahar, the proprietor of the firm, was found at the business premises. His preliminary statements were recorded and thereafter the survey operation was conducted. It was contended by the petitioner that certain stock of M/s. Vinod Udyog, which is a sister concern was also part of the stock and that 63 bags of "tara mira" have though been received, but were not recorded in the books of account. However, the authorised officer also found that there was a room adjacent to the business premises of the assessee, which was locked, and initially the petitioner denied that the room was not owned by them and that there is no connection with the said room, however, then he admitted the said room to be in his possession and when the room was opened, it was found that it also had 120 bags of "til" and the petitioner admitted in his statements recorded that the said goods of 120 bags of "til" are not recorded in the books of account. Notice under Sec. 77(7) was issued to the petitioner for appearance and adducing evidence on January 17, 1999 as to why penalty under Sec. 77(8) be not imposed. However, the petitioner filed an application on the spot that he does not want to file any other evidence and that the matter may be decided that day itself, i.e., January 17, 1999 and admitted that he has committed the mistake and was also ready to pay the penalty so imposed. Accordingly the assessing officer levied a penalty of Rs. 51,840. The said matter was assailed before the Deputy Commissioner (Appeals) who also upheld the finding of assessing officer. On a further appeal by the assessee, the Tax Board also upheld the order of the Deputy Commissioner (Appeals).
(2.) Counsel for the petitioner contended that the goods were received in the morning session and it was the claim that the accountant of the petitioner had received the goods but did not convey the factum of receipt of the said goods to the petitioner. It is further contended that entry in the books of account at least of the amount paid to the transporter of Rs. 3,250 was duly recorded and found entered in the books of account. He further contended that though the goods were received, were certainly required to be recorded, but on account of communication gap in between the petitioner and the accountant, the said goods on a wrong premise, was admitted to be undisclosed when the goods were duly received, were disclosed and he ought not to have been penalised because he was not aware of the facts of receipt of goods by the accountant, and thus the order of the Tax Board is perverse and deserves to be reversed.
(3.) Per contra learned counsel for the Revenue contended that a finding of fact is recorded by all the three authorities that the goods were not only found unrecorded but even the petitioner himself did not want to lead any further evidence or to place any other material and even the assessee accepted the mistake that the goods were unrecorded and contended that what more was required when despite of opportunity having been granted, the petitioner himself said that the order may be passed and he is prepared to deposit the so -called penalty, if any. He contended that the order of the Tax Board is just and proper and needs no interference. I have considered the arguments advanced by the counsel for the parties, and in my view no interference is required to be called in the order passed by Tax Board. It is a finding recorded by all the three authorities that even initially the petitioner conveyed to the authorised officers at the time of survey that the adjacent room in which 120 bags of "til" were found, were not owned or possessed by the petitioner but later on even agreed that the room was under their occupation and agreed to open the room and in fact the room was opened by the petitioner himself where such goods were found. It is not the case where the godown or the so -called room where 120 bags are said to have been found was at a distant place, rather it is a finding of fact that the godown/room where the said goods were found is part of the business premises and adjacent to the business premises itself, therefore, to say that the accountant did not inform the petitioner -owner/assessee about the goods having been received in the morning session, is in my view an afterthought and has rightly been taken into consideration by the Deputy Commissioner (Appeals) and also the Tax Board. Admittedly the survey was conducted on January 2, 1999, the show -cause notice was issued for January 17, 1999 granting adequate time to the petitioner to place on record further evidence and material in support of its contention, but the petitioner himself insisted that he does not want to place or file any evidence and he moved an application on the spot admitting the mistake, and in my view when despite of proper adequate opportunity having been granted and not availed of, rather insisted about passing of an order on the spot, in my view nothing further remains to be established by the Revenue and accordingly, in my view, the order of the Tax Board is just and proper and needs no interference. The Tax Board has decided on finding of fact and appreciation of evidence. Consequently, the penalty in my view has been rightly imposed by the AO and rightly upheld by the Deputy Commissioner (Appeals) so also by the Tax Board, and no perversity is noticed in the order impugned, so as to call for interference of this court. The question of law is answered against the assessee and in favour of the Revenue.;