SB Civil Sales Tax Rev. Pet. No.123/2008
ACTO, Pali Vs. M/s. HR Enterprises, Jaipur.
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SB Civil Sales Tax Rev. Pet. No.123/2008
ACTO, Anti Evasion -I Pali
Vs.
M/s. HR Enterprises, Jaipur.
DATE OF ORDER : - 17.12.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.Rishabh Sancheti,for the petitioner.
Mr. Anjay Kothari, for the respondent.
Heard learned counsel for the parties.
In the present revision petition, following substantial
questions of law have been raised by the petitioner which
are relevant for the purpose of deciding this revision
petition:
[i] Whether on the facts and in the circumstances of
the case, the learned Tax Board, Ajmer was justified
in passing the impugned judgment dated 30.11.2007
vide which the first appellate authority order dated
28.8.2006 has been upheld?
[ii] Whether the learned Tax Board has erred in law
in holding that prior to 22.3.2002, the penalty under
Section 78 (5) of the Act of 1994 for violation of
Section 78(2) of the Act of 1994 could not have been
SB Civil Sales Tax Rev. Pet. No.123/2008
ACTO, Pali Vs. M/s. HR Enterprises, Jaipur.
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imposed against the owner of goods?
So far as question no. [ii] is concerned, this is no more
resintegra in view of the authoritative pronouncement of the
Hon’ble Supreme Court in the case of Asstt. Commercial
Taxes Officer VS. Bajaj Electrical Ltd reported in 2008
(Vol.10) Vat Reporter 211 wherein it has been held that the
expression “person in-charge of the goods” under Section
78(5), RST Act, 1994 include the owner since the word “in
movement” do not find place in section 78(5) and as such
this expression is winder than the expression “person in
charge of goods in movement” under Section 78 (2)(a).
In view of the above reason, the tax board’s order of
rejection of the appeal of the revenue dated 13th Nov., 2007
cannot be sustained as that has been passed following the
law which is no more good law in view of the decision of the
Hon’ble Apex (supra).
Learned counsel for the respondent vehemently
submitted that the DC (Appeal) in impugned order dated
28.8.2006 not only held respondent not liable for the tax
and penalty on the basis of question of law referred above,
SB Civil Sales Tax Rev. Pet. No.123/2008
ACTO, Pali Vs. M/s. HR Enterprises, Jaipur.
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but also decided the question of law in favour of the
assessee and on the basis of question of fact it has been
held by the DC (Appeal) in its order dated 28.8.2006 that
revenue failed to show that it was a case of evasion of tax
by the respondent-assessee.
Learned counsel for the revenue rightly pointed out
that reasons in detail given by the DC ( Appeal) in its order
while considering the question of fact, the same have not
been considered the tax board and tax board dismissed the
appeal only on the ground of the question of law which too
has been contrary to the law laid down by the Hon’ble Apex
Court.
It appears that DC (Appeal) has decided the question
of fact in favour of the respondent-assessee and held that
revenue failed to prove that the assessee has evaded the
tax and failed to prove that the relevant documents were
forged etc., but it appears that the tax board has not
applied its mind to the detail factual aspect considered by
the DC (Appeal) while considering the relevant documents
of the assessee. Since that finding is in favour of the
assessee recorded by the first appellate court and the Tax
SB Civil Sales Tax Rev. Pet. No.123/2008
ACTO, Pali Vs. M/s. HR Enterprises, Jaipur.
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Board has not reversed, rather say, not considered this
finding in the light of the arguments of the Revenue,
therefore, the appeal of the appellant is allowed. The order
of the tax board dated 30th Nov., 2007 is set aside. The
matter is remanded back to the Tax Board for deciding the
appeal of the revenue afresh. Both the parties shall appear
before the Tax Board on 19.1.2009. The Tax Board may
decide the appeal expeditiously within a period of two
months from the date of receipt of this order. Meanwhile,
no recovery be affected from the respondent in this matter.
(PRAKASH TATIA), J.
c.p.goyal/-