TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THESE three revision petitions have been preferred by the Revenue against the same party and, therefore, all three revision petitions are heard together and are being decided by this common order. FOR THE YEAR 1989-1990 : Facts of the case are that the respondent assessee is a registered dealer under the provisions of Rajasthan Sales Tax Act, 1994 (for short, 'the Act of 1994') and according to the revenue, the respondent is engaged in the trade of sale and purchase of the tractor. The respondent assessee submitted quarterly returns for the year 1989-1990. Total four returns were submitted, two on 4. 10. 1989 and two on 12. 4. 1990. The returns were for the period 1. 4. 1989 to 30. 6. 1989, 1. 7. 1989 to 30. 9. 1989, 1. 10. 1989 to 31. 12. 1989 and 1. 1. 1990 to 12. 4. 1990. In these returns, sale of tractors were not shown by the dealer. On 19. 7. 1991, survey was conducted at the assessee's premises and at that time, Mr. Pradeep Narain Mathur, partner of the assessee firm, was present and when the officers of the revenue demanded books of accounts, he informed that they are not available at the business place of the assessee as they are lying with the accountant of the assessee. At that time, according to the revenue, said Pradeep Narain Mathur stated that the assessee firm is neither dealing with the trade of purchase and sale of the tractor nor they are manufacturing the tractor. The assessee firm is dealing only in the tractor parts and for that sale, the assessee is paying tax. Again on 22. 7. 1991, survey was conducted in the premises of the assessee where Rajendra Kumar Mathur and Amba Lal Mathur were present and when again books of accounts were demanded by the officers of revenue, they failed to produce the books of accounts and stated that all informations are available with the partner of assessee firm - Mr. Pradeep Narain Mathur. The assessee on 24. 7. 1991 submitted revised returns for the period mentioned above and disclosed the sale of 4 tractors but in the proceedings for assessment of tax and levy of penalty upon the assessee, several notices were issued to the assessee by the assessing authority but the assessee failed to produce books of accounts. According to the revenue, the revenue enquired from the manufacturing firm of the tractor namely, HMT Ltd. , Chandigarh and found that the assessee is the dealer of manufacturer HMT Ltd. and purchased the tractors for sale in Rajasthan. The fact was corroborated by the information which was provided by the District Transport Authority to the Assessing Authority. Since 1985-86, he purchased 42 tractors from the manufacturing company for sale. On the basis of the evidence collected from the tractor manufacturing company and from the office of District Transport Officer, and on the basis of the reasons that the assessee in its original returns furnished in the year 1989 did not disclose the sale of the tractors and in survey, it was stated that the assessee is not dealing in the trade of purchase and sale of the tractor whereas the manufacturing company disclosed that the assessee is the dealer of the manufacturing company for the sale of the tractor and in fact, the assessee imported tractor from the manufacturing company and this fact was corroborated by the evidence obtained from the office of the District Transport Officer, the assessing authority, after holding that the revised returns filed by the assessee were barred by time and the assessee failed to produce the books of accounts at any point of time and, therefore, if the revised returns are accepted, that will be favour to tax evaders only. The assessing authority rejected the revised returns and held that the assessee with the intention to conceal the sale and avoid tax, submitted false returns, therefore, the assessee is liable to pay the tax amount and also liable to pay the penalty under Section 16 (1) (e) of the Act of 1954 of Rs. 93,987. 28p. with tax amount of Rs. 65,985/ -. Out of the total tax amount, the assessee deposited Rs. 22,586/- but with delay and the remaining amount of Rs. 43,399/- has not been deposited till the order was passed, therefore, interest was also imposed on the assessee. Penalty for late furnishing the Form No. 66 was also imposed. The assessee submitted one application under Section 10-C of the Sales Tax Act along with application for condonation of delay with request to give opportunity to assessee to submit his case. The said application was allowed and the assessing authority vide order dated 23. 7. 1992 held that the assessee did not disclose the sale of 4 tractors only in place of 5 tractors. The assessing authority again after upholding case of willful concealment of the sale by the assessee to avoid tax, took lenient view and reduced the penalty imposed upon the assessee and recalculated the amount of tax and penalty by order dated 29. 7. 1992. Being aggrieved by the order of assessing authority dated 29. 7. 1992 for the year 1989-1990, the assessee preferred appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Bikaner. The Deputy Commissioner (Appeals) in his order dated 3. 11. 1995 held that the concealment of sale by the assessee was with an intention to avoid the tax and further held that the books of accounts subsequently shown by the assessee are prepared books of accounts in support of its case. Some minor changes were allowed by the Deputy Commissioner (Appeals) which are not very much relevant for the purpose of deciding these revisions in view of the questions raised by the revenue in these revisions but so far as holding the assessee guilty of concealment of taxable sale and intention of the assessee, the finding of the assessing authority was upheld by the Deputy Commissioner (Appeals ).
(3.) BEING aggrieved against the order of the Deputy Commissioner (Appeals) dated 3. 11. 1995, the assessee preferred further appeal before the Rajasthan Tax Board, Ajmer which was allowed by the Tax Board by common order dated 17. 4. 1998. The Tax Board was of the view that once assessee submitted Form ST 18a at the check post and entered the sale in the books of accounts, therefore, it is not a case of willful concealment of sale by the assessee. FOR THE YEAR 1990-1991 : For the next year 1990-1991, the assessee submitted quarterly returns on 26. 7. 1991. These returns were for the period ending on 30. 7. 1990, 30. 10. 1990, 30. 1. 1991 and 30. 4. 1991. The assessing authority observed that the assessee did not submit the returns till his premises were surveyed on 19. 7. 1991 and 22. 7. 1991 and the assessee sold the tractors and collected the tax amount but did not deposit the tax amount before submitting returns and the tax amount has not been deposited even upto the assessing authority passed the assessment order dated 17. 8. 1992. The fact of conduct of the partner of the assessee firm at the time of survey was also taken note of and the assessing authority took note of statement of the assessee wherein he stated that he is not dealing in the sale and purchase of the tractor. The assessee for the year 1990-91 submitted written reply before the assessing authority and stated that he signed the statement recorded at the time of survey without reading the statement. He admitted that the assessee is the dealer of HMT tractors. It is also submitted that the survey was conducted in the year 1992 and, therefore, survey report cannot be considered for the assessment year 1990-91. Explanation was submitted by the assessee that because of poor financial condition, the assessee could not deposit the tax amount in time nor the assessee could deposit the return in time. The assessee stated that he is maintaining the books of accounts and all the entries of purchase and sale of tractor have been entered in the books of account. Assessee's only fault is that it could not deposit the tax amount in time. The assessing authority was of the view that had there been no survey on the premises of the assessee, the assessee would have taken benefit and the act of assessee of not depositing the tax amount was with the intention to avoid the tax liability. The assessee avoided to produce the books of accounts at the time of survey and he did not deposit the tax amount even after long period and till his assessment order was passed. The assessee was served with several notices which are dated 6. 8. 1991, 16. 8. 1991, 5. 9. 1991, 17. 2. 1992 and 25. 2. 1992, pointing out that along with the returns, the assessee has not submitted ST-1- challan and, therefore, the returns submitted without proof of payment of tax amount are liable to be rejected and the assessee is liable to pay the interest and penalty also. The assessee's explanation that he could not produce the books of accounts because they were lying with the assessee's accountant and he died subsequently, was not accepted by the assessing authority. The assessing authority further observed that despite several notice, the assessee did not produce the books of accounts or any record and, therefore, found that the assessee with the intention to conceal the tax liability, did not submit the books of accounts. The assessing authority, therefore, calculated the tax and imposed the penalty, quantum whereof is not very much relevant for the purpose of deciding these revisions. ;