DWARKA PRASAD, J. - (1.) THIS application under section 15 (2) (b) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), as it stood at relevant time, is deemed to be an application for revision under section 15 (1) of the Act as amended by the Rajasthan Sales Tax (Amendment) Act, 1984, because of the provisions contained in sub-section (10) of section 13 of the amending Act of 1984.
(2.) M/s. Ram Bagh Palace Hotel, Jaipur (hereinafter referred to as "the assessee"), in the course of its business sells liquor to its customers. The assessee is registered as a dealer under the Act and the Central Sales Tax Act, 1956. While making an assessment of the turnover of the assessee for the assessment year 1969-70, the assessing authority found that the assessee had not paid tax on sale of imported liquor. A notice was issued by the assessing authority on January 4,1974, to the assessee to show cause why penalty be not imposed to the extent of Rs. 21,078. 50 upon the assessee under section 16 (1) (i) of the Act, as according to the assessing authority the assessee had fraudulently evaded payment of tax on imported liquor. The case of the assessee was that although the assessee was allotted licence for import of foreign liquor, the assessee requested M/s. United General Stores, M. I. Road, Jaipur, to import liquor on the basis of the licence. According to the assessee, M/s. United General Stores always charged sales tax under the Act while selling the foreign liquor imported by it to the assessee and also deposited the tax thus collected from the assessee and as sales tax on sale foreign liquor in Rajasthan was payable on the first point in the series of successive sales by registered dealers, the assessee considered the entire stock of foreign liquor received by it from M/s. United General Stores as tax paid and did not change any sales tax from the customers or consumers while making further sales. Thus the case of the assessee was that tax was paid on the sale of imported foreign liquor though at the wrong point, yet as there was no fraudulent intention on the part of the assessee, no penalty could have been imposed under section 16 (1) (i) of the Act. The assessing authority did not accept the contention advanced on behalf of the assessee and imposed a penalty under section 16 (1) (i) of the Act by his order dated April 18, 1974. On appeal by the assessee, the Deputy Commissioner (Appeals-I), Commercial Taxes, Jaipur, by his order dated January 20, 1976, held that the sales made by M/s. United General Stores to the assessee were in the course of import and could not be considered as a sale within the State of Rajasthan under the Act as M/s. United General Stores had acted only as handling or importing agent on behalf of the assessee. It was, therefore, held that the assessee had failed to make payment of tax about its turnover of imported foreign liquor and as such the imposition of penalty was justified under section 16 (1) (i) of the Act. The assessee filed a revision petition before the Board of Revenue. The Division Bench of the Board of Revenue by its order dated December 21,1978, held that even though the tax might have been paid at a wrong point, yet the goods which were tax paid could not be taxed again and that in the circumstances that sales tax was already charged when the goods were sold to the assessee, it could not be held that there was any fraudulent avoidance or or omission in the payment of tax. Thus the order imposing penalty was set aside by the Board of Revenue. The Commercial Taxes Officer (Revisions), Ajmer, filed application under section 15 (1) of the Act before the Board of Revenue seeking a reference to this Court and it was prayed that three questions arising out of the order of the Board of Revenue dated December 21, 1978, be referred to this Court for its decision. The Board of Revenue rejected the application by its order dated November 13, 1979, and it was held that the questions sought to be raised involved questions of fact which did not warrant a reference to this Court. In these circumstances, the Commercial Taxes Officer (Revisions) filed this application under section 15 (2) of the Act before this Court, which, as mentioned above, has been treated as a revision petition petition on account of the provisions of section 13 (10) of the amending Act of 1984. It was submitted before us by the learned counsel appearing for the assessee that the assessee had filed an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jaipur, against the imposition of tax on the sales of imported foreign liquor on the ground that tax has already been charged on the sale of such liquor by M/s. United General Stores to the assessee and that the appeal was allowed on the ground that the liquor supplied by the assessee to its customers was by way of service and no sale was involved in the transaction. In any view of the matter, sales tax in respect of which the penalty was imposed was set aside by the appellate authority. Learned counsel appearing for the department is not in a position to say before us as to whether the order passed by the appellate authority has been subject-matter of a revision petition preferred before the Board of Revenue or that the same has been reversed or interfered with by any higher authority. Be that as it may. We have heard learned counsel for the parties on merits.
(3.) THE department desires that a reference may be called for in respect of the following three questions : " 1. Whether on the facts and circumstances of the case the turnover of foreign liquor was not liable to tax because of its being tax borne in the hands of M/s. United General Stores ? 2. Whether on the facts and circumstances of the case a penalty under section 16 (1) (i) was not leviable notwithstanding the fact that the opposite party has not paid tax on correct point in accordance with rule 15 of the Rajasthan Sales Tax Rules ? 3. Whether on the facts and circumstances of the case the turnover comprised of sale of liquor in packed or in bottles to consumer or customer was not liable to tax ?" Learned counsel for the department appearing before us, Mr. K. K. Sharma, frankly conceded that so far as question Nos. 1 and 3 are concerned, no consideration is necessary in these proceedings. THE only question which can be pressed for consideration is that comprised in question No. 2 mentioned above. Section 16 (1) (i) as it stood at the relevant time, read as under : " 16. Offences, penalties and prosecutions, etc.- (1) If any person - (i) fraudulently evades or avoids the payment of tax or conceals his liability to tax; or" Thus in order to impose penalty under section 16 (1) (i) an evasion or avoidance of payment of tax should be fraudulent or there should be concealment of liability of the assessee to pay tax. THE question of concealment of liability to pay tax has not been raised in the present case as it was the case of the assessee from the very beginning that tax under the Act was paid at the time of sale in favour of the assessee and that the imported foreign liquor received by the assessee was treated to be tax paid and as such no tax was actually collected or liable to be collected on subsequent sales made by the assessee to the purchasers. THE question as to whether evasion or avoidance in the payment of tax was fraudulent or not, it may be observed, is essentially a question of fact. In Commissioner of Income-tax, West Bengal - I v. Anwar Ali [1970] 76 ITR 696 (SC) the questions related to imposition of penalty under section 28 (1) (c) of the Indian Income-tax Act, 1922, for concealing income and deliberately furnishing inaccurate particulars of such income. It was held by their Lordships of the Supreme Court in the aforesaid case that penalty could be imposed under section 28 (1) (c) only when there was cogent material or evidence from which it could be inferred that the assessee had concealed particulars of income or had deliberately furnished inaccurate particulars in respect of the same and that penalty cannot be imposed merely because the explanation furnished by the assessee was found to be false. It was also observed in that case by their Lordships of the Supreme Court that before penalty could be imposed the entirety of circumstances must reasonably point out to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished inaccurate particulars. This decision was followed by their Lordships of the Supreme Court in Commissioner of Income-tax, Madras v. Khoday Eswarsa and Sons [1972] 83 ITR 369 (SC ). In Additional Commissioner of Income-tax, Rajasthan v. Gem Palace [1975] 98 ITR 640 it was held by this Court that the question whether there was any concealment of income and whether there was any fraud or gross or wilful neglect, in the filing of the proper return of its income on the part of the assessee, was essentially a question of fact. When the Tribunal came to the conclusion that there was no fraud or gross or wilful neglect on the part of the assessee and cancelled the penalty on that basis, there was purely a finding of fact arrived at by the Tribunal and no question of law arose. ;