TMI Blog2023 (6) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct investigation, afford opportunity of defence/hearing to the assessee and inspect/analyse the documents. The same are sine qua non for imposition of penalty. Imposition of penalty can never be said to be automatic or per se. The foundational facts and premises for the imposition of such penalty and for upholding such penalty have to be established by the Revenue and the burden of the same also lies upon the Revenue. In the case in hand, the learned Tax Board had erroneously reached the conclusion that the production of VAT 47 subsequently was merely an afterthought as the VAT 47 was produced the same day and the reference of the particular VAT 47 was also reflected in the invoice dated 29.08.2012, which was produced on the spot of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, the Rajasthan Tax Board is justified in taking contrary views for the same offence-one in the case of the petitioner against whom the demand has been restored and another in case of the driver in whose case the appeal filed by the Department has been dismissed for the same offence? 2. The facts in a nutshell are like this. On 30.08.2012, the goods, viz., oil cake being transported in truck number UP 25 T 9297 was checked near Khol ke Hanumanji, Jaipur by the respondent ACTO and he found inter alia that the driver of vehicle while producing the relevant bills and bilty of the goods being transported did not produce the prescribed format No. VAT 47, which was inter alia required to be produced along with other relevant document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hecked and the performa invoice dated 29.08.2012 submitted at the time of inspection had reference of the same VAT 47 form and therefore the production of VAT 47 could not have been an afterthought. Learned counsel for the petitioner-assessee further submits that the offence against which penalty has been imposed on petitioner-assessee, for the same offence the revenue had also made a case against the driver of the vehicle under Section 76(9) of the RVAT Act. However, though the offence against which penalty was imposed in both the cases was the same, but in the case of the driver the order passed by the Appellate Authority setting aside the penalty was sustained by the learned Tax Board. 4. Learned counsel further contends that the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, as per settled position of law, penalty is not to be applied automatically in each case. To invoke penal provision, the Revenue has to necessarily conduct investigation, afford opportunity of defence/hearing to the assessee and inspect/analyse the documents. The same are sine qua non for imposition of penalty. Imposition of penalty can never be said to be automatic or per se. The foundational facts and premises for the imposition of such penalty and for upholding such penalty have to be established by the Revenue and the burden of the same also lies upon the Revenue. 8. In the case in hand, the learned Tax Board had erroneously reached the conclusion that the production of VAT 47 subsequently was merely an afterthought as the VAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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