J.K. Ranka, J. - (1.) Instant petition is directed against order dated 9.6.2008 of the Rajasthan Tax Board, Ajmer, by which order of the Dy. Commissioner(Appeals) dated 7.3.2007 was upheld in Appeal No. 2244/2007/Jaipur.
(2.) The brief facts noticed are that on 6.6.1998 when "rough square teak wood" was being unloaded from vehicle No. DLI GA 3486, at that time the officer of the investigation wing intercepted and checked the vehicle and the in -charge of the respondent -assessee provided builty No. 6527 dated 3.6.1998 and bill No. 282 dated 3.6.1998, which were issued by M/s. Jai Timber Traders, Delhi, of Rs. 1,83,169/ -. Though the purchaser was shown to be M/s. Vikas Carpentry Works, 115A Doctor Colony, Hira Nagar, Jaipur, but was found being unloaded in the premises of M/s. Prabhat & Sons, the respondent -assessee. It was noticed that declaration form ST 18 -A, which was mandatory, was not found with the vehicle nor produced and consequent to the aforesaid discrepancies and other discrepancies noticed, show cause was issued to the respondent, explanation was filed, but the Assessing Officer was not satisfied and imposed penalty under Sec. 78(5) of the Rajasthan Sales Tax Act, 1994, of Rs. 56,400/ -. The said order was assailed before the Dy. Commissioner(Appeals), who primarily was of the view that though facts were found to be correct as contended by the respondent -assessee, but the penalty was deleted solely on the basis that prior to 22.3.2002 penalty could have been imposed only on the in -charge of the vehicle/driver and since penalty was imposed on the owner, therefore, the penalty was deleted. On a further appeal by the Revenue, the Tax Board also upheld the order of the Dy. Commissioner(Appeals) only on the basis that the penalty imposed is prior to 22.3.2002, and could not have been imposed on owner.
(3.) Learned counsel for petitioner contended that order of the Tax Board is perverse and it is required to be quashed and set aside as the finding that prior to 22.3.2002 penalty could have been imposed on the incharge of the vehicle only and not the owner, is unjust and bad in law as the Hon'ble Apex Court in the case of ACTO v/s. Bajaj Electricals Limited : (2009) 1 SCC 308, has held that even prior to 22.3.2002 penalty could have been imposed on the owner as well, and thus contended that when the Hon'ble Apex Court has already held that penalty could have been imposed on the owner, as in the instant case, order of the Tax Board deserves to be quashed, set aside and reversed. The counsel also contended that the declaration under ST 18 -A of the Act was mandatory, which was not found, and even later -on was not produced and other material placed before the Dy. Commissioner(Appeals) was an afterthought and just to evade the tax, an alleged agreement between the assessee and M/s. Vikas Carpentry was filed, which has no basis. She further contended that the impugned order is perverse.;