ORDER
Lakshmanan, CJ.
1. Heard Mr. Sanjeev Johari, advocate for the petitioner.
(2). This writ petition has been filed questioning the correctness of the judgment dated 15.4.98 Annex.4 and to quash the same. There are other consequential prayers also.
(3). The contention of the writ petitioner is that the Tribunal has committed an error by holding that penalty is not leviable because that stand of the Firm M/s Leeladhar Biyani and Sons, has been accepted by regular Assessing Authority while passing the regular assessment order and that anything substantially involved in the provisional assessment order carries its own weightage and the passing of any regular assessment order whether on the same terms or on different terms cannot wash away the substantial aspects already involved in the provisional assessment order made by the Anti Evasion Wing of the Commercial Taxes Department.
(4). We are unable to accept the said contention raised by the learned counsel for the petitioner.
(5). We have perused the judgment passed by the Rajasthan Taxation Tribunal. The Tribunal, after hearing the arguments and examining the materials placed on record, came to a categorical conclusion that once regular final assessment orders have been made and the position taken by the applicant-firm has been accepted as correct the penalty could not be levied on it. It also held that in the absence of a case of avoidance or evasion of tax the non-applicant could not acquire the jurisdiction over the matter.
(6). In the present case, the regular assessments were made by the regular assessing authority on the basis of the factual position put up before the said authority by the respondents. In our view, once the final assessment order has been passed, the provisional assessment order dated 1.2.96 shall be replaced by the final assessment order and that the final assessment order only operates and any recovery to be made has to be adjusted towards the final assessment order. Under such circumstances, we are of the opinion that the finding of the Tribunal that the penalty is not leviable, is correct and that once there is no tax liability, the question of penalty being imposed, does not arise. The Tribunal is right in allowing the application filed by the respondent herein and setting aside the demand notice with regard to the penalty amounts.
(7). In view of the view we have now taken, the judgment cited by the learned counsel for the petitioner in Assistant Commercial Taxes Officer vs. Chauhan Enterprises (1), does not lay down the correct legal position. With respect, we are unable to subscribe our views to the view taken by the learned Single Judge. We, therefore, declare that the said judgment is no longer good law.
(8). The aforesaid decision proceeds on the premise that later modification of final assessment order on appeal or revision shall, make the provisional assessment still relevant. With utmost respect we are unable to agree. Once regular assessment order taken place, after provisional assessment, the findings given in the regular assessment and tax demand created thereunder only operate. Even on appeal or revision, if the regular assessment order is modified, varied or set aside, the regular assessment order as modified by the superior authority in such proceedings as are undertaken, prevails. In such circumstances, there is no reverting to provisional assessment order thereafter.
(9). The writ petition fails and is dismissed.
