TMI Blog2011 (3) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... have been a different matter, but now before this court in the revisional jurisdiction for the first time this question cannot be permitted to be raised. The findings of fact returned by the assessing authority below in this regard as far as imposition of tax on the sale hydraulic excavator is concerned, are not required to be disturbed in revisional jurisdiction and to that extent the orders passed by the lower authorities deserve to be upheld. For imposition of penalty in these circumstances at the rate double the amount of tax imposed by the assessing authority was not justified. Revision petition is partly allowed and as far as penalty under section 16(1)(i) of the Act is concerned, the same is set aside, however, the levy of tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital asset of the said assessee, which was sold to its sister concern, namely, M/s. Manjeet Stone Company, Kota for a sum of ₹ 23 lacs for which the amount was realized by cheque ; and therefore, the same was not taxable in the hands of the assessee. He further submitted that since the transaction was duly recorded in the books of accounts of the assessee, therefore, the petitioner-assessee was not liable to pay any penalty under section 16(1)(i) of the Act. He relied upon the following judgments in support of his contentions:- 1. State of Gujarat v. Raipur Manufacturing Co. Ltd. reported in [1967] 19 STC 1 (SC). 2. Commissioner of Sales Tax, Bihar v. Basta Colla Colliery Co. Ltd. reported in [1968] 21 STC 454 (Patna). 3. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver filed by him, even claiming such sale to be exempted from sales tax and nil turnover returns were filed by the assessee which was assessed as such in the first instance on June 20, 1995. However, upon the said information being received from the Income-tax Department only, the assessing authority came to know that said taxable sale of hydraulic excavator and, therefore, the assessment order as well as orders passed by the appellate authorities are perfectly justified, and they do not require any interference by this court in revisional jurisdiction. He relied upon a recent decision of the honourable Supreme Court in the case of Union of India v. Dharamendra Textile Processors reported in [2008] 18 VST 180 (SC) ; [2008] 306 ITR 277 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient for attracting civil liability as is the case in the matter of prosecution under section 276C of the Income-tax Act. In the Union Budget of 1996-97, section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In paragraph 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the notes on clauses also similar indication has been given. The above being the position, the plea that rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip N. Shroffs case [2007] 291 ITR 519 (SC) ; [2007] 8 Scale 304 (SC) was not correctly decided but Chairman, SEBI's case [2006] 131 Comp Cas 591 (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, which cannot be said to be perverse in the facts and circumstances of the case ; and therefore, they do not give rise to the question of law required to be determined under section 86 of the RST Act, 1994. Whether the assessee had closed down business of sale of stones for the year in question or not ; Whether registration certificate empowers it to sell even the hydraulic excavator as commodity for resale or not ; and whether sale of hydraulic excavator is a sale of capital asset or sale of a commodity in the regular course of business depending upon the entries made in the registration certificate, are all the questions of fact and not question of law. The three authorities below have also concurrently held that sale of hydraulic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing authority in the impugned assessment order dated October 4, 1999 is clear that said profit has been shown in the P and L account of the assessee, therefore, as far as recording of said transaction of sale in the books of accounts is concerned, it appears to beyond the pale of doubt that the assessee had recorded the transaction of the sale in the books of accounts and, therefore, imposition of penalty under section 16(1)(i) of the Act, does not appear to be justified. This court in the case of Lord Venketshwara Caterers [2007] 10 VST 535 (Raj) has already held that penalty under section 65 of the RST Act, 1994 cannot be imposed on the assessee unless the Revenue establishes that there is deliberateness on the part of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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