BALIA, J. - (1.) THIS Civil Sales Tax Revision is directed against the order passed by Rajasthan Tax Board, Ajmer in Appeal No. 353/96/st/jodhpur dated 10. 2. 98 rejecting appeal filed by the Assistant Commissioner Taxes, Officer Jodhpur and against the order of the Deputy Commissioner (Appeals) Commercial Taxes, Jodhpur dated 14. 3. 95. The Deputy Commissioner set aside the order of levy of tax by way of penalty for breach of second proviso of Rules 25c of Rules framed under the Rajasthan Sales Tax Act, 1954. It was found by the Board that though the assessee was in error in furnishing a joint declaration for more than one transaction of sale but the breach being of technical nature, essential conditions to give benefit of the exemption having been fulfilled, the penalty can not be levied. In coming to this conclusion the Board has relied on a Division Bench decision of this Court in Commercial Taxes Officer, Pali vs. Kanhayalal Mohanlal (1 ).
(2.) THE facts as found by the Board and about which there is no dispute are that the assessee had obtained a purchase order from the buyer dated 1. 7. 91 placing an order for supply of 65 Matric Tonnes of Rape-seeds. In pursuance of the contract the goods were supplied between 11. 7. 91 to 21. 2. 92. About this transaction a declaration was furnished in form ST-17 for the purchase of a sum of Rs. 19,95,483. 39/-Paisa for resale within the State. THE said declaration was furnished in terms of Rule 25c of the Rajasthan Sales Tax Rules. THE said declaration was submitted with return. However, the Assessing Officer was of the view that the declaration being delayed, as well as a joint declaration in respect of more than Rs. 2 lacs of purchase were not permitted the condition of second proviso Rule 25c was breached, therefore, the assessee is liable to pay penalty equal to the tax on the said amount along with interest. In this connection it need to be noticed that in the first instance the Assessing Officer has found that sales amounting the total Rs. 43,80651. 09 paisa were claimed to be exempted under Rule 25c but are not supported by declarations and consequently disallowing the claim for exemption, and levied tax on the said turn-over along with interest u/s. 11-B of the Act. By first rectification order dated 30. 9. 94 he had accepted declarations of assessee filed in respect of three items about which ST forms has been produced consisting of Rs. 5,20,243/-, 1,21,445/-& 1,98,982. 35/-paisa. As against the balance a declaration form ST-17 No. S-11 492 for a sum of Rs. 19,95,483. 39 paisa was not accepted because it was for an aggregated sum exceeding Rs. 2 lacs and was covering period of more than six months. On this basis the sum of purchase covered by ST-17 No. ST-492 amounting to Rs. 1995483. 39 paisa were subjected to tax and interest. However, when it was pointed out that after allowing exemption against three forms balance of disallowed claim was only Rs. 179650/-and not Rs. 1995483. 39 paisa, the amount of disallowed ST form, because of duplicaty of purchase bill for Rs. 198952. 35 paisa. Declaration of this amount was included in ST-17 form for Rs. 1995483/-as well as separate declaration for the said purchase was also filed and accepted. Yet another rectification order was made on 25. 3. 95 correcting this mistake and computation of tax and interest was confined to the turn-over of Rs. 17,96,51. 04 paisa only. In short, it can be said from the orders that ultimately the claim of the assessee under Rule 25c in respect of turn over of Rs. 17,96,501. 04 paisa was not accepted by the Assessing Officer on the ground that declaration in ST-17 form in respect of such transactions did not conform to the requirement inasmuch as more than one transaction aggregating in more than Rs. 2 lacs could not be covered under one declaration and that one declaration could not be made in respect of aggregated transactions during a period of more than six months. On appeal against the aforesaid order the Deputy Commissioner (Appeals) found that though there has been breach of the provision of Rule 25c, but the same being a technical breach without there buying any chance of the tax evasion or avoidance, penalty for such breach could not be levied by way of penalty. A levy for additional tax and interest in respect of the said tax was deleted. On further appeal, the Rajasthan Tax Board confirmed the order of Deputy Commissioner (Appeals) by coming to the conclusion that though there is a breach of Rule 25c, but the breach being technical in nature the order of Deputy Commissioner is not liable to be interfered with. In aforesaid circumstances this revision petition has been preferred by Revenue. Mr. Lodha appearing for the Revenue urged that if the order of the Tax Board is accepted, it would result in rendering the second proviso to Rule 25c ineffective and redundant and such a interpretation ought not to be accepted. Particular attention was invited that Rules 25c has been amended from time to time and the amended provisos 2 & 3 have to be read to find true intention of the Legislation, and further that in view of the amendment carried out in the rules the decision of this Court in Commercial Taxes Officer, Pali vs. Kanhayalal Mohanlal (Supra) cannot be pressed into service by the assessee, as a binding precedent. Learned counsel for the assessee Mr. Mehta urged that the alleged amendment in the provision so far as relevant for our purpose has not been effected in substance which fell for consideration before this Court in the aforesaid decision. This Court having already held the breach in the manner of filing declaration, namely the declaration of more than one transaction beyond period and amount is mere technical breach cannot lead different interpretation, inasmuch as except for changing the monthly limit and extending the period, basic substratum of the rule has not been amended. It has further been urged that reading the main provision to proviso reveals that distinction has been made between a `sale' and a `transaction'. The provisions requires that no declaration cover more than one transaction except where the total coverage by one declaration is not exceeding Rs. 2 lacs and not beyond the six months of the declaration. On this basis it was urged that such sale of 65 metric tonnes was made by the buyer under one contract of sale, fact that goods under one contract were supplied on different dates under different bills cannot convert the same in more than one `transaction' though each bill may be treated as one `sale'. The interpretation by assessing authority is erroneous that more declaration was required in respect of one transaction by then one, which may result in more than one sale. It is only where each sale is a separate transaction then the proviso is applicable.
(3.) FIRST coming to the additional supportive contention raised by the learned counsel for the respondent. Relevant part of r. 25-C reads as under:- " [25c. Furnishing of declaration-[ (1) A dealer who is entitled to and (i) exemption from payment of tax; or (ii) payment of tax at a concessional rate, (a) on sales made to a registered dealer of goods taxable at the last point for the purpose- (i) re-sale within the State; or (ii) sale in the course of Inter-State trade or commerce; or (iii) sale in the course of export out of the territory of India; or (iv) sale outside the State; (b) on the sale of any raw material eligible for concessional rate of tax, under section 5c; or (c) on sales of any such goods as may be exempted from tax, on the condition of furnishing declaration; shall in respect of each such sale, obtain a declaration from the purchasing dealer in Form S. T. 17 and shall along with the return under rule 25, file all declaration obtained as aforesaid and also submit a separate list of such sales in form S. T. 16; [provided that all declaration obtained as aforesaid shall be filed by the dealer before or at the time of assessment unless earlier required by the assessing authority; Provided further that no declaration shall cover more than one transaction except where the total amount covered by one declaration does not exceed [rs. 2 lac] for all the transaction in [six months. ]" The last proviso was deleted vide Notification No. F. 4 (28)FD/gr. IV/90-90 dated 4. 3. 92, which reads as under:- " Provided further that notwithstanding anything contained in sub-rule (1), if the Commissioner, on an application made by a dealer and after making such enquiry as he may considers necessary, is satisfied that the dealer is not in a position to furnish all or any of the declaration referred to in sub-rule (1) above, on account of loss of such duplicate declaration forms, he may by an order in writing exempt such dealer from furnishing such declarations (s), subject to the conditions that the application is made within 45 days of such event supported by the evidence of loss of such declaration form. Provided that an application under the preceding proviso may be made upto 31. 3. 90 in relation to riots occurred in Makrana circle in March, 1989. " However, the like provisions were re-enacted with effect from same date in the form of Rule 25e, enabling the Commissioner in certain circumstances to dispense with furnishing of declaration forms. ;