Rajasthan High Court - Jaipur
C T O Jaipur vs M/S Radha Govind Bhandar on 25 November, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH, JAIPUR
1. S.B. Sales Tax Revision Petition No.559 of 2011
CTO, ANTI-EVASION, ZONE-II, JAIPUR
V.
M/S. KIRAN ENTERPRISES, DEENANATH JI KI GALI, CHANDPOLE
BAZAR, JAIPUR
2. S.B. Sales Tax Revision Petition No.558 of 2011
CTO, ANTI-EVASION, ZONE-II, JAIPUR
V.
M/S. KAILASH CHAND SURESH KUMAR, 33 BARAH JI KA CHOWK,
GANGORI BAZAR, JAIPUR
3. S.B. Sales Tax Revision Petition No.561 of 2011
CTO, ANTI-EVASION, ZONE-II, JAIPUR
V.
M/S. RADHA GOVIND BHANDAR, 33 BARAHJI KA CHOWK,
DEENANATH JI KI GALI, CHANDPOLE BAZAR, JAIPUR
4. S.B. Sales Tax Revision Petition No.562 of 2011
CTO, ANTI-EVASION, ZONE-II, JAIPUR
V.
M/S. KAJAL ENTERPRISES, 104 SAMURI HOUSE, DEENANATH JI
KI GALI, CHANDPOLE BAZAR, JAIPUR
Order reserved on : 20th October 2016
Order pronounced on : 25th November 2016
HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA
Ms. Tanvi Sahai, counsel for petitioner
Mr. Vivek Singhal, counsel for respondents
ORDER
-----
1. All these four petitions involve identical issue at the instance of the Revenue, are directed against order dt 13.6.2011 passed by the Rajasthan Tax Board, Ajmer. The assessment year is 2009-10.
2. The brief facts noticed are that the officers 2 of the Anti-Evasion Wing conducted a survey at the Railway Parcel Godown, Jaipur, in the presence of Incharge of the Godown on 7.12.2009, after the goods were unloaded from Train No.2969, wherein Cardamom [ilaichi] was found of the respondents. Inquiry was conducted on the basis of railway receipt and pursuant thereto, the respondents appeared producing Delivery Note form JJ for Consignment Sale and VAT declaration form 47 of importing the said goods. It was found that the consignor is one M/s Maya Traders of Bondnayakanur (Tamil Nadu) and the name of the consignee did not find place. The respondents informed that as per the prevalent system with the railways, apart from railway receipt, they do not accept any other declaration form or enclosure and railway receipt is sufficient to prove the factum of goods being transported. It was also informed that it is not that there is no name of the consignee, rather on the back side of the railway receipt, names of the consignee i.e. the respondents, find place and contended that there is no question of evasion of tax and the goods are duly proved. However, the Assessing Officer was not satisfied and imposed penalty u/s 76(6) of the Rajasthan Value Added Tax Act, 2003.
3. On an appeal before the Dy. Commissioner (Appeals), the said facts were reiterated, however, the DC(A) was not satisfied and sustained the penalty.
4. On a further appeal before the Tax Board 3 resulted into deleting the penalty and reversing the orders passed by both, the AO and DC(A).
5. Learned counsel for the Revenue vehemently contended that Rule 53 gives power to Revenue to inspect goods sent through railways/airways and by other travel modes. The railway receipt merely mentioned 'self' and the name of the seller was common in all the cases. Both, the AO as well as DC(A) found as a finding of fact, that non-disclosure of name of the consignee clearly proves that the goods were being transported with the intention of evasion of tax. Learned counsel also contended that declaration form VAT 47 produced later-on was also incomplete and Part-C was blank where the name of transporter was required to be mentioned. Learned counsel also contended that producing the declaration form later-on proves that it was created later-on and was an after-thought and contended that there is violation of Rule 53, and penalty was rightly imposed. Learned counsel relied on the judgment of apex court in the case of Guljag Industries v. CTO (2007) 7 SCC 269.
6. Per contra, learned counsel for the assessee contended that admittedly the railways except issuing railway receipt, does not take any document or declaration form at the time when the goods are taken for transportation and sent on consignment and even the AO has mentioned this fact after verifying from the railway authorities. Learned counsel further contended 4 that VAT declaration form duly filled-in was submitted on a show-cause notice and the judgment of apex court in the case of State of Rajasthan & Another v. D.P. Metals (2002) 1 SCC 279, squarely applies in the facts of the instant case. Leaned counsel further contended that the AO did not make further inquiry and had no basis for imposition of penalty. Learned counsel further contended that admittedly the name of consignee finds place on the back side of the railway receipt and the AO came to know about the assessee only after noticing the name mentioned in the railway receipt, otherwise the AO could not have even located the respondent assessee. Learned counsel further contended that the AO has nowhere held the said transaction to be bogus or non genuine and only on account of doubts and conjunctures is no reason for imposing the penalty.
7. I have considered the arguments advanced by learned counsel for the parties and perused the material placed on record, and in my view, Tax Board has rightly deleted the penalty in all the aforesaid cases.
8. There is a finding recorded even by the AO that "the railway authorities while booking the goods for transportation from one place to another, does not accept any certificate or/and declaration form or/and any other invoice" itself proves that the contention raised by the assessee appears to be correct that Railway does not take any declaration form or any other 5 certificate, bill etc. in view of the said finding recorded by the AO. The AO while rejecting the claim of assessee has highlighted that form "C" was to be filled-in by the transporter and here in the instant case the transporter is the railways and it could not have been expected of the railway authorities to fill- up Part-C when the goods were being transported through railways.
9. Admittedly, on the back side of the railway receipt, a copy of which was produced by the learned counsel for the assessee and which has not been disputed by the learned counsel for the Revenue, is that it mentions the name of the consignee i.e. the respondent-assessee on the back side which has been duly signed by the consignor. The AO, after having produced declaration form VAT 47, has not conducted any inquiry worth name and the order of AO at various places mentions about doubtful nature of transaction and has not come to a conclusive finding based on any other material on record, which could prove that the goods were being intended to transport with the intention of evasion of tax. Admittedly, before the AO the respondent provided on a show-cause notice the following documents, namely -
1. Proforma Invoice
2. Railway Receipt
3. Road Permit
4. Delivery Note Form JJ for Consignment Sale
10. Even for the delivery note form JJ the AO simply observes "izekf.kdrk lafnX/k izrhr gksrh gS", which also proves 6 that the AO came to a possible suspicion only and in furtherance to the suspicion, no effort was made by the AO to come to a correct finding about the goods being transported with the intention of evasion of tax. The AO has also not conducted any inquiry from anyone. Admittedly, the Tax Board comes to a finding of fact that the declaration form contained all material particulars, namely TIN number, date of builty, bill amount, description of goods, description of weight and only the signature of transporter being railways was not there, is no reason to infer any adversity insofar as the assessee is concerned. The consignor was not expected to force the transporter i.e. the railways to sign on the declaration form, particularly when the goods were being transported through Railways.
11. As pointed out earlier, when the AO himself after conducting inquiry comes to a finding that when the railways does not accept any enclosure or document, then the AO ought not to have come to an adverse conclusion.
12. In my view all these are findings of fact, based on the material evidence on record and in my view the finding reached by the Tax Board is just and proper. Consequently, the petitions being devoid of any merit, are dismissed.
(JAINENDRA KUMAR RANKA) J.
db 133-136