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TMI Blog2013 (10) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... "(i) Whether, in the facts and circumstances of the case, the Rajasthan Tax Board was justified in law in deleting the penalty under section 77(8) of the Act of 1994 when the assessee himself admitted that the goods are unaccounted and there was no procedural infirmity? (ii) Whether, in the facts and circumstances of the case, the Rajasthan Tax Board was justified in law and has not acted perversely in deleting the penalty under section 77(8) despite of admission of the assessee with regard to goods being unaccounted solely on the basis of version which is an after thought?" 2. The brief facts as emerging on the face of record is that a survey was undertaken by the officers of the petitioner-Department at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said sustenance of the penalty, the respondent-assessee preferred an appeal before the Rajasthan Tax Board (in short, "the Tax Board"). The Tax Board, however, agreed with the submission made by the counsel for the respondent-assessee and deleted the penalty levied by the assessing officer by holding that the respondent has produced the necessary bill before the DC (A) and also books of account in which necessary entries were recorded and had produced photocopy of the cash book, the Tax Board, however, observed that merely because there was admission, therefore, only on this basis the penalty could not have been levied and accordingly deleted the penalty. 6. Hence, this revision petition. 7. Ms. Tanvi Sahai, learned counsel for the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sustain or stand the test of evidence and law, as any act done subsequent cannot be said to be full proof. Even entries were allegedly made later which is unjust as it was clearly admitted that no entry has been made in the regular books of account. She further submitted that the Tax Board was unjustified in merely accepting the claim of the respondent on the basis of mere assertion without any evidence, and only on the basis of the alleged photo copy of the cash book which apparently was produced before the DC (A). She would further submit that the Tax Board, exceeded its jurisdiction and came to a wrong finding when everything was admitted by the respondent-assessee. Accordingly, she pleaded that the penalty be sustained and the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent at the time of survey, (3) despite adequate opportunity having being granted the respondent pleaded for imposing of penalty, payment of the penalty and release of the goods on the spot, (4) letter dated December 20, 2000 was also filed admitting that the said goods were purchased without bill and that no entry was made in the books of accounts. 12. Nothing was pleaded by the respondent during the intervening period of five years that is date of survey on December 20, 2000 and hearing of the appeal February 15, 2006 about any pressure tactics or coercive measure on the respondent. Had it been so then the necessary and proper course for the respondent-assessee was to immediately approach the higher administrative authority, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no entry in the books of accounts, rather the respondent admitted imposition of penalty and even payment of the penalty on the spot. In my view, on these finding no other factor was required to be considered by the Tax Board. 16. However, if otherwise even when adequate opportunity was granted and which was not availed of by the respondent then nothing further was required to be looked into by the assessing officer and, in my view, the penalty was rightly imposed by the assessing officer, rightly sustained by the DC (A) and wrongly deleted by the Tax Board, and in my view, the order of the Tax Board, deserves to be reversed. Accordingly, the order of the Tax Board, is reversed and that of the assessing officer is sustained. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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