Rajasthan High Court - Jaipur
M/S Nagarmal Mahavir Prasad vs A C T O Jaipur on 2 December, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
S.B. SALES TAX (VAT) REVISION PETITION No.42 of 2013
PETITIONER :-
M/S. NAGARMAL MAHAVIR PRASAD, PANKHA ROAD, CHURU
THROUGH ITS PROPRIETOR SHRI HANUMAN PRASAD, SON OF
SHRI NAGARMAL, AGED 40 YEARS, RESIDENT OF CHURU.
V.E.R.S.U.S.
RESPONDENT :-
THE ASSTT. COMMERCIAL TAXES OFFICER, FLYING SQUAD 6,
RAJASTHAN, JAIPUR
JUDGMENT RESERVED ON : 4th NOVEMBER, 2016
JUDGMENT PRONOUNCED ON : 2nd December, 2016
HON'BLE MR.JAINENDRA KUMAR RANKA,J.
Mr. Alkesh Sharma Adv., for petitioner.
Ms. Meenal Ghiya Adv., for respondent.
JUDGMENT
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1. Instant petition is directed against the order dt.10.11.2012 passed by the Rajasthan Tax Board, Ajmer (in short 'the Tax Board").
2. The brief facts noticed for disposal of the present petition are that on 22.01.2008, a vehicle bearing No.RJ-23/G-1471 which was coming from Deemapur (Assam) was intercepted/checked near New Aatish Market, Jaipur by the officer of the Revenue department. The driver/incharge of the vehicle produced Invoice No.310 dt.14.01.2008, VAT Form No.0776261 & Builty No.1036 including other supporting material though as per the bill and Builty, the goods were destined to Churu and since it was containing an address of shop No.250, New Aatish Market, Gopalpura Bye-pass, Jaipur therefore, the Assessing Officer was prima-facie of the view that the goods were being transported with the intention of evasion of tax, a 2 show cause notice was given. On behalf of the petitioner one Mahavir Prasad appeared and requested for making the petitioner firm as a necessary party and to hear. It was also contended by the petitioner- assessee that insofar as the mistake pointed out by the Assessing Officer of the year being 14.01.2007 or 14.01.2008 is concerned it was a typographical error and insofar as the other issue as to why the vehicle was near New Aatish Market, Gopalpura Bye-pass Jaipur is concerned, it was contended that the assessee had sold the goods in transit to M/s. Mangalam Sales, New Aatish Market, Jaipur and produced photo-copy of the challan bearing No.510 dt.21.01.2008. However, the Assessing Officer was of the view that it is an afterthought and no material was placed on record about the goods having been sold in transit and the Assessing Officer being not satisfied with the explanation furnished, imposed penalty u/Sec.76(6) of the Act.
3. The matter was carried in appeal before the Dy. Commissioner (A) who accepted that it could be a typographical error in mentioning the year being 2007 or 2008 and also took into consideration the challan bearing No.510 dt.21.01.2008 which proves that the goods were sold in transit and accordingly accepted the appeal.
4. The Revenue carried the matter in appeal before the Tax Board which resulted into reversing the findings of the Dy. Commissioner (A) and allowing the appeal of the revenue.
35. Learned Counsel for the assessee contended that the driver/incharge had produced valid documents to justify the transportation of goods from Deemapur (Assam) to Jaipur and all the documents proved that the goods were being transported in proper manner. Counsel also contended that the goods under transit sale, was proved by producing the challan No.510 dt.21.01.2008 of having the same sold to M/s. Mangalam Sales, Jaipur and once it was a transit sale, it was to be delivered to M/s. Mangalam Sales which had business premises at New Aatish Market, Jaipur and therefore, the vehicle was found near Aatish Market, Jaipur.
6. Counsel also contended that "C-Form"
dt.18.01.2008 was produced before the Assessing Officer which was duly filled in and punched containing all the material required in the declaration Form. Counsel also contended that nothing is required to be proved in a case of transit sale and mere handing of the documents is sufficient and justified that it was a transit sale. Counsel also relied upon judgment of this Court in the case of Assistant Commercial Taxes Officer, Anti Evasion, Ward II, Bharatpur Vs. K.S. Oil Ltd. (2013) 60 VST 522 (Raj.), Mahaveer Conductors Vs. Assistant Commercial Taxes Officer, Ward III, Circle C, Jodhpur, Rajasthan (1997) 104 STC 65, The Deputy Commissioner of Commercial Taxes, Madurai Division , Madurai Vs. A.R.S. Thirumeninatha Nadar Rirm, Tuticorin (1968) Vol. 21 STC 184 (Mad.). Thus, contended that the order of the Tax Board so also the Assessing Officer is unjust and require to be 4 interfered with.
7. Per-contra, learned counsel for the revenue contended that there were two mistakes noticed by the Officer, one was regarding mentioning of the year 2007 whereas in fact it was 2008 which may not be material but insofar as the other finding recorded by the Assessing Officer and Tax Board is concerned, that the assessee was unable to prove that it was a transit sale, is a finding of fact recorded. No evidence or proof of transit sale was placed and mere alleging that it was a transit sale cannot be accepted and had rightly been rejected by the Tax Board. Counsel also contended that had it been a transit sale, at least on the documents, there ought to have been an endorsement about the name of so called M/s. Mangalam Sales and mere version unsupported by evidence is nothing but a mere a statement only. She contended that the assessee had to carry form E1-E2 if it was a case of transit sale. Counsel also contended that the so called challan is afterthought and it is a clear cut case of intention of evasion of tax. Even otherwise, challan No.510 dt.21.01.2008 was a photo-copy and filed later and could not have been relied in any case and thus, supported the order of the Tax Board & the assessing officer.
8. I have considered the arguments advanced by the counsel for the parties and in my view, the order of 5 the Tax Board appears to be just and proper and is not required to be interfered with.
9. It may be a case where the goods were being transported from the consignor being Gattani Industries (Assam) and the consignee being Nagar Mal Mahaveer Prasad petitioner herein and the documents does support the said claim so also the builty of Mamta Transport Corporation and also the declaration Form VAT-47 but the claim of the petitioner that it was a transit sale, for that there is no evidence on record except mere version that it was a transit sale. The arguments of the counsel for the petitioner that in a case of transit sale, mere handing over of the documents is sufficient cannot be accepted. Insofar as the transit sale is concerned, procedure is laid down in the Act and the Tax Board has taken into consideration that u/Sec.3(b) of the CST Act in a case of transit sale there ought to have been an endorsement on the builty and the same should have been produced at the time when the vehicle was intercepted.
10. The documents placed on record does not prove that it is an interstate sale. The Tax Board has rightly held that there was contradiction in the very argument placed before the lower authorities that even if it was a transit sale, the due tax would be paid by the petitioner is contradictory as in the case of transit sale as per the CST Act, the tax is at concessional rate and there is no local tax. It is a finding of fact recorded by the Assessing Officer as well as by the Tax Board that the so called challan 6 No.510 dt.21.01.2008 was produced later on at the time when the show cause was issued and has rightly been discarded by both the Authorities and there was no material before the Dy. Commissioner (A) who came to a finding that the challan No.510 dt.21.01.2008 was produced before the Assessing Officer by the driver/incharge. The claim of counsel for the assessee with vehemence about the challan No.510 being with driver was also proved in the negative and for this purpose the records were also summoned to verify the facts when the Assessing Officer and the Tax Board have come to a specific finding that the so called challan bearing No.510 dt.21.01.2008 was not found with the driver at the time of interception of the vehicle and produced later on. It reveals from the records and perused by the counsels that the so called challan No.510 dt. 21.01.2008 placed at S.No.19 of the file of the Assessing Officer is with the reply to the show cause notice dt.28.01.2008 and the arguments of the counsel for the assessee is also not proper when he contended that the same was produced by the driver/incharge at the time when the vehicle was intercepted. What made the Dy. Commissioner (A) to come to the finding that challan was with the Driver and produced on the spot is also contrary to the material on record for the above reasons.
11. The judgment relied upon by the counsel for the assessee in the case of The Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai (supra) is distinguishable on facts inasmuch as in the said case in fact the bank with whom the assessee had pledged the goods after crediting the proceeds towards 7 the debts, the banks paid over to the assessee the balance amount and the Court held that in such a case transfer of documents may be effected by handing them over and an endorsement to that effect on the documents is only one mode of proof, but not necessarily the only way of proving the transit whereas the fact as noticed earlier, it is a mere version of the assessee that it was a transit sale unsupported by any material or evidence.
12. The fact in the case of ACTO, Anti Evasion, Ward II, Bharatpur Vs. K.S. Oil Ltd. (supra) is entirely distinguishable as in the said case it was held by the Tax Board that "when the goods were in transit, those were duly dispatched and accompanied by all requisite documents and thus there appears no indication of any evidence to evade the tax" whereas the findings as noticed above in the instant case is totally against the assessee.
13. The another judgment of Mahaveer Conductors (supra) is also distinguishable on facts and taking into consideration the judgment of the Apex Court in the case of Guljag Industries Vs. Commercial Taxes Officer (2007) 7 SCC 269 and also the judgment of the Larger Bench of this court in the case of ACTO Vs. Indian Oil Corporation (2015) 82 VST 200 (Raj.) where it has been held that mens-rea is not essential in these proceedings, thus the judgments are applicable as Dy. Commissioner (A) has held that the Assessing Officer has not proved that there was intention of evasion of Tax.
814. Accordingly, I do not find any infirmity, illegality or perversity in the order impugned so as to call for interference.
15. Consequently, the petition being devoid of merits, is hereby dismissed.
(JAINENDRA KUMAR RANKA),J.
S.Kumawat Jr. P.A.