Rajasthan High Court - Jodhpur
C.T.O.,A/E.,Jhunjhunu vs M/S Radha Krishan Mal Chand on 11 October, 2011
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.STR No.274/2004
CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand
&
S.B.STR No.257/2005
CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand
Order dtd: 11/10/2011
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S. B. Civil Sales Tax Revision Petition No.274/2004 CTO, Anti Evasion, Jhunjhunu Vs. M/s Radha Kishan Mal Chand & S. B. Civil Sales Tax Revision Petition No.257/2005 CTO, Anti Evasion, Jhunjhunu Vs. M/s Radha Kishan Mal Chand Date of Order ::: 11th October, 2011 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Sharad Tatiya on behalf of Mr. V.K. Mathur, for the petitioner.
Mr. Dinesh Mehta, for the respondent.
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1. These two revision petitions have been filed by the petitioner-Revenue against the order of the Tax Board dated 17.09.2003 whereby the assessee's appeal to the extent of imposition of tax of Rs.3,96,117/- for the assessment years 1997-98 and Rs.3,25,150/- for the assessment year 1998-99 has been set aside. The Deputy Commissioner (Appeals) in the first appeal filed by the Assessee, rejected the same and held that the assessee failed to establish that opening stock of goods shown in the trading account was of ST paid goods and, therefore, he imposed the tax liability on the assessee by passing the impugned assessment order. S.B.STR No.274/2004
CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand & S.B.STR No.257/2005 CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand Order dtd: 11/10/2011 2/4
2. Learned Tax Board in the second appeal filed by the assessee allowed the appeal to this extent and it appears from the said order that evidence of the goods being ST paid was produced before the learned Tax Board also, as would appear from page 5, bottom para of the impugned order. While accepting the version of the assessee, the Tax Board for the assessment year 1998-99, at page 4 of the impugned order also found that in respect of imposition of tax to the extent of Rs.1,79,812/- on some other issue, the Deputy Commissioner (Appeals) had remanded the case back to the Assessing Authority, which portion of the order of Deputy Commissioner (Appeals) was upheld by the learned Tax Board also in the same order.
3. Learned counsel for the Revenue, Mr. Sharad Tatiya submitted that the learned Tax Board ought to have remanded the case back to the Assessing Authority in these circumstances in its entirety and the evidence produced by the assessee could not be accepted without the same being proved and without giving an opportunity to the Revenue to cross-examine such evidence produced by the assessee.
4. On the other hand, Mr. Dinesh Mehta, learned counsel for the respondent-Assessee, submits that the findings returned by the learned Tax Board are finding of facts and they are not perverse, therefore, remand would not be proper in these circumstances, S.B.STR No.274/2004 CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand & S.B.STR No.257/2005 CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand Order dtd: 11/10/2011 3/4 especially when the assessment pertaining to past years of 1997-98 and 1998-99, a long period has already passed since then.
5. Having heard the learned counsel for the parties, this Court is of the opinion that the cursory manner in which the learned Tax Board has accepted the trading account along-with tax paid bills produced by the assessee, does not appear to be justified since the revenue lost its opportunity to cross-examine such evidence before the higher appellate forum of Tax Board. Particularly, when the Tax Board was aware of the matter that proceedings for 1998-99 on the issue of Rs.1,79,812/- demand was already remanded to the Assessing Authority who was seized of the said matter, the learned Tax Board in all fairness ought to have remanded the entire proceedings to the Assessing Authority for verification of documents and evidence produced before the Tax Board. Even though such documents and evidence might have been produced before the Assessing Authority at the time of original assessment order and, so also, before the Deputy Commissioner (Appeals), nonetheless, since the lower authorities did not accept this version of the assessee, without allowing an opportunity to cross-examine to the Revenue such evidence the same on the face of it could not straightway be accepted by the learned Tax Board as it was a final fact finding body under the Act.
6. Consequently, this Court is of the opinion that the S.B.STR No.274/2004 CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand & S.B.STR No.257/2005 CTO, A.E.,Jhunjhunu Vs. M/s Radha Kishan Mal Chand Order dtd: 11/10/2011 4/4 present revision petitions filed by the Revenue deserve to be allowed and the matter of assessment for both these years viz. 1997-98 and 1998-99 deserves to be remanded back to the Assessing Authority, who will pass fresh assessment orders in pursuance of this remand order within a period of six months from today.
7. In the result, both these revision petitions are allowed. No costs.
(DR. VINEET KOTHARI), J.
DJ/-
10S-1