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TMI Blog2013 (5) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... l Taxes Department, Jaipur, (in short, "the DC (A)). The DC (A) also upheld the order passed by the CTO (Flying Squad), HQ, Jaipur, whereby the penalty of Rs. 1,10,135 was imposed against the petitioner. The revision petition was admitted on November 5, 1998 on the following questions of law: "(1) Whether the penalty under section 22A(7) could be imposed upon the goods in transit, which is STP in the hands of the consignor? (2) Whether the petitioner could be bound to produce the books of accounts of the THIRD PARTY? (3) Whether the petitioner have a right to know about the progress of the enquiry conducted by the authorities regarding the transactions' genuineness?" The brief facts emerging on the face of the record of the case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased from M/s. Agarwal Oil and General Mills and not from M/s. Yogendra Trading Company rather only a bill was placed of Yogendra Trading Company. Therefore, on the basis of wrong information and on producing false and fictitious documents, showcause notice under section 22A(7) of the Sales Tax Act was issued. On further enquiry, it was found that the earlier name of Yogendra Trading Co. was M/s. Agarwal Oil Mills, 82, Azad Nagar, Daudpur but from February 13, 1991 the name and title of the firm was Yogendra Trading Co., Alwar. It was also noticed that the said firm filed return for one quarter for the year 1990-91, with negligible turnover and though subsequent returns were filed but the turnover for the subsequent period was shown as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and General Mills, MIA Alwar. Accordingly, the respondent-Department held that the bills found in the possession of the driver were bogus and fictitious and accordingly imposed penalty under section 22A(7) amounting to Rs. 1,10,135. This order of imposition of penalty was challenged before the learned DC (A) by the petitioner where also same facts were reiterated that the version of the driver cannot be believed when all other facts are very clear. It was further stated that the imposition of penalty is made on the basis of conjunctures and surmises and the penalty deserves to be deleted. However, the DC(A) also agreed with the findings arrived at by the CTO (FS), the officer of the respondent-Department and confirmed the penalty, so impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the judgment rendered by this court in the case of ACTO (Flying Squad), Sri Ganganagar v. C.D. Motors, Sri Ganganagar 112 Tax Up Date Vol. 26 Part 3 and submitted that the co-ordinate Bench of this court has held that "since identity and existence of the respondent-assessee, a duly registered dealer was not in doubt, the bill in question could not be held to be false or forged merely because they showed the goods to be ST paid". He further submitted that something more has to be proved by the respondent while imposing the penalty when the goods were sales tax paid and once burden was discharged by the petitioner therefore, the penalty imposed is unjustified and deserves to be deleted. On the other hand, Ms. Tanvi Sahai, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the facts of the judgment relied upon by the learned counsel for the petitioner is not at all applicable to the facts and circumstances of the present case. She further submitted that on the one hand the petitioner claimed that the goods was tax-paid whereas the question of tax paid does not arise when Yogendra Trading Co. had not filed any return and if filed, the turnover was shown as nil and it has not been proved by anyone as to goods being sales tax paid. She further submitted that even at a later stage, the petitioner could not prove by acceptable or other evidence that Yogendra Trading Company did exist and had filed proper returns and paid due tax, therefore, the penalty has rightly been imposed. She further stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchase bills were issued by Yogendra Trading Company and the petitioner-firm was asked to lead further evidence, if any, of the goods having been purchased from Yogendra Trading Company despite repeated opportunities neither any evidence in the shape of confirmatory letter was placed before the respondent-Department nor any affidavit was filed from M/s. Yogendra Trading Company to confirm the sale of goods. It is true, that the respondent-assessee petitioner may not be required to produce the record of the third party but certainly something more was to be proved by the petitioner in the facts and circumstances of the present case. If Yogendra Trading Company did sell the goods and had issued proper bills, there was no difficulty in su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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