9911796707
TMI Blog2013 (2) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... ng from the face of record are that the respondent herein is a driver, while carrying some goods (200 bags of rice) on March 12, 2005 in the vehicle No. HR-61/0855 at Mandrela-Jhunjhunu route, the said vehicle was stopped and interrogated by the flying squad and upon interrogation, it was found that along with goods the original bill No. 211 dated March 11, 2005 of M/s. Amit Trading Company, Surajgarh was there for being delivered to M/s. Ghanshyamdas Murlidhar and Company, Fatehpur. 3. It is claimed by the assessing officer that the investigation was made by Commercial Taxes Officer (for short, "CTI") on March 13, 2005 and on investigation by CTI, it was found that the office/shop of M/s. Amit Trading Company, Surajgarh was closed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-driver that the penalty imposed is unjustified and is in violation of the principles of natural justice There was no intention of evasion and even the assessing officer has not proved by acceptable evidence that the papers were otherwise forged. It was further claimed that the investigating officer issued notice in the name of respondent-driver (Tejpal Singh) and no notice was even served upon the owner of the goods and in view of the above facts and circumstances, even otherwise, no penalty could have been levied on the driver (respondent herein). It was further claimed that in view of several authorities/rulings, no penalty in law could be levied. 8. After having considered the issue at length, the DC (A) deleted the penalty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order. 12. Mr. Mathur, learned counsel for the petitioner-Department argued the matter at length and contended that no proper documents were available with the respondent-driver and on investigation, it was informed that M/s. Amit Trading Company is a very small concern and that the goods were being carried for M/s. Ghanshyam Das Murlidhar and Company, Fatehpur who also denied about any order having been placed or purchase of the said goods and that in view of the provisions of section 78(5) and (10A) of the Act, the penalty has been rightly imposed by the assessing officer but that has been wrongly deleted by the DC (A) and the Tax Board was unjustified in sustaining the order of deletion of penalty by the DC (A). 13. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, (a penalty equal to thirty per cent of the value of such goods.) (10A) Notwithstanding anything contained in this section, where the driver of the person in-charge of the vehicle or the carrier abstains from bringing or stopping the vehicle or carrier at the nearest check-post as provided under clause (b) of sub-section (2), the in-charge of the check-post or the officer empowered under sub-section (3) may detain such vehicle or carrier and, after affording an opportunity of being heard to the owner or a person duly authorised by such owner or the driver or the person in-charge of the vehicle or carrier, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sub-section (8), there is discretion vested with the assessing authority in the matter of levy of penalty." 17. The honourable Supreme Court in the above case was considering section 78(5) and 78(8) while in the present case section 78(5) and section 78(10A) are being considered which came to be inserted by the Rajasthan Finance Act, 2002 (Act No. 7 of 2002) dated May 4, 2002 and in both sections distinction "may" has been maintained. The provision is to prevent or check avoidance of evasion of tax therefore where no ground of evasion or avoidance of tax is made out with the alleged breach of provisions of section 78, no penalty could be levied, in the present case as has been noticed that the documents have been found to be in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof, we are of the opinion that to the extent, the learned single judge found that admittedly, the driver was carrying all necessary papers, invoices and no tax was due makes out a case that the vehicle was carrying the goods along with requisite documents without intention to avoid or evade tax. That being so, the discretion vested in the assessing authority was not liable to be exercised even if there was technical violation of sub-section (10A) to impose the penalty equal to 50 per cent, of the value of the goods, though as noticed by us no case of violation of sub-section (10A) was spelt out in notice under section 78. Thus, penalty came to be imposed without affording opportunity to the driver to defend himself. The levy of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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