Rajasthan High Court - Jaipur
M/S Jay Door Industries Pvt Ltd vs Raj Tax Board Through Registrar And Anot on 8 January, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. SALES TAX REVISION PETITION NO.217/2012. M/s.Jay Door Industries Pvt.Ltd. Vs. Rajasthan Tax Board & Anr. Date of order : January 8, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sarvesh Jain for the petitioner. ****** BY THE COURT:-
This sales tax revision petition is directed against the order of the Rajasthan Tax Board dated 16/7/2012 by which appeal filed by the revenue against the judgment of the Deputy Commissioner (Appeals) Bharatpur dated 7/1/2008 was set-aside and the order of assessment dated 28/3/2007 was restored. Assessment officer passed the aforesaid assessment order on the basis of the survey of the business premises of the petitioner conducted by him and held that assesse is guilty of value added tax evasion determined for Rs.42,442/- and penalty of Rs.1,07,768/- under Section 75(8) and a penalty of Rs.2,000/- was also raised under Section 64 of the of the Rajasthan Value Added Tax Act, 2003 and a total demand for a sum of Rs.1,52,210/- was raised.
Learned counsel for the petitioner has argued that the tax board was wholly unjustified in interfering with the order of the Deputy Commissioner (Appeals), who rightly held that the goods in question could not have been accounted by the assessing authority in one day to hold that assesse was guilty of tax evasion. The survey was neither conducted in the presence of the assesse nor in the presence of his business manager. Survey was conducted in the presence of Shri Bhawani Shankar Sharma, Maintenance Supervisor, who could not be taken as a business manager. The assessing authority did not summon two independent witnesses during physical verification of the assessed goods. Assessing Officer has not proved the alleged sales. Order was passed merely on assumption and presumption without any factual aspect. No account of full stock was taken and included the stock during physical verification, which was not worth for sale, while accounting the same. The assessing authority did not provide opportunity of cross examination to statement made against petitioner and hence principles of natural justice violated.
Learned counsel relying on the judgment of this Court in M/s.Diamond Marketing Agency Jaipur Vs. A.C.T.O. (Anti Evasion-I) Circle-II, Jaipur argued that present revision petition raises a substantial question of law whether the tax board was justified in maintaining the validity of survey conducted in the absence of manager of the petitioner firm on the basis of statement of an illiterate person and whether admission of such an illiterate person can be considered for the purpose of assessment, which was in breach of Rule 51 of the Rajasthan Value Added Tax Rules, 2006?
Learned counsel for petitioner has relied on the definition of business manager as per Rule 51(c), as under:-
51(c) The dealer or his business manager or any other person performing any activity relating to the business at the business place, building or other premises searched, shall be deemed to be the person in-charge of such premises and shall also be permitted to witness the search.
Learned counsel for petitioner argued that aforesaid rule requires that the officer, who carries out a search under Section 75 to adopt the aforesaid rule, which provided that the survey shall be conducted in presence of dealer or any other person performing any activity relating to the business at the business place, building or other premises and shall be deemed to be the person in-charge of such premises and shall also be permitted to witness the search and since Shri Bhawani Shankar Sharma was not a declared business manager relating to the business premises of the petitioner firm, the survey was dehors the rules.
Perusal of the Deputy Commissioner Appeals order indicates that the Deputy Commissioner partly allowed the appeal on the premise that the assessing authority could not have accounted 5356 paper based decorative laminated sheets, 520 kgs. Design paper and 440 kgs. Phinol (Chemical) on one single day as the stock was declared in excess and thus the compliance of Rule 51 has not been made as the survey was conducted in the presence of maintenance supervisor of the petitioner, who is neither owner nor was declared as business manager. Even if Shri Bhawani Shankar Sharma was not a declared business manager of the petitioner firm nevertheless, Rule 51(c) provides that search can be conducted in the presence of any other person performing any activity relating to the business at the business place, building or other premises searched, shall be deemed to be the person in-charge of such premises. Shri Bhawani Shankar Sharma was maintenance supervisor of the petitioner firm and thus he was certainly a fit person performing any activity relating to the business at the business place. He was not a stranger. The tax board has also taken into consideration that the account books were produced by Manager Shri Ramesh Kedia and representative of the petitioner firm Shri Rajendra Singh Chouhan, which were tallied with the survey report. Verification report dated 17/3/2007 that was prepared on that basis carried the signatures of those two representatives of the petitioner firm. It was on that basis that the assessing authority issued notice to the petitioner under Sections 75(8) and 64 of the VAT Act. Hence, the statutory compliance of two independent witnesses was made as per Rules 51(1)(b) and 51(1)(c) of the Rules of 2006. Mere fact that Shri Bhawani Shankar Sharma was not a declared business manager does not mean that he is non-existent and was a stranger. There was therefore no justification for the tax board to have reversed the appellate order restoring back the assessment order citing judgment of this Court.
I therefore do not find any substantial question of law in the present revision petition, which is accordingly dismissed.
(MOHAMMAD RAFIQ), J.
Anil/3 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW