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2015 (3) TMI 1195 - RAJASTHAN HIGH COURT

2015 (3) TMI 1195 - RAJASTHAN HIGH COURT - [2015] 86 VST 323 (Raj) - Levy of penalty - excess stock found - assessee is dealing in utensils, umbrellas, general kirana goods etc. - Penalty was deleted on the ground that survey did not take place in the presence of two independent witnesses and even there was no list of physical verification on the file - Held that:- Rule 50 of the RST Rules postulates that not only the search operation is to be conducted in the presence of two independent witness .....

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osed and the Tax Board on aforesaid finding of fact and appreciation of evidence, has come to a definite conclusion that the search was improper and therefore, in my view, no question of law can be said to emerge out of the order of the Tax Board. - Decided against the revenue. - S.B. Sales Tax Revision No.214/2011 - Dated:- 27-3-2015 - J.K. Ranka, J. Ms. Tanvi Sahai on behalf of Mr. RB Mathur, counsel for the petitioner Mr. Alkesh Sharma, counsel for the respondent ORDER Instant sales tax revis .....

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t the business premises of the respondent-assessee and it was noticed that the assessee is dealing in utensils, umbrellas, general kirana goods etc. and during the course of survey at three floors and eleven godowns of the respondent-assessee, on the basis of the books produced and the actual stock found, it was noticed that the total weight of the steel utensils was 7415 Kg. with a value of ₹ 5,19,050/- while the goods to the extent of ₹ 3, 07,375/- were found recorded in the books .....

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allenged the matter in further appeal before the Tax Board who also upheld the findings recorded by the DC(A) and came to the conclusion that survey did not take place in the presence of two independent witnesses and even there was no list of physical verification on the file and since the procedure laid down under Rule 50 of the RST Rules was not followed, therefore, dismissed the appeal. 5. Ld. counsel for the Revenue contended that the person, who was found present at the time of survey, admi .....

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come to a wrong conclusion and substantial question of law arise out of the order passed by the Tax Board. 6. Per-contra, ld. counsel for the respondent-assessee while controverting the arguments advanced by ld. counsel for the petitioner-Revenue, supported the order passed by the Tax Board and submits that the order passed by the Tax Board is in accordance with law and there is no illegality, infirmity or perversity in the order passed by the Tax Board and the order passed by the Tax Board req .....

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may consider fit, impose on him, for the possession of goods not accounted for, whether seized or not under sub-section (6), a penalty equal to the amount of five times of the tax leviable on such goods or thirty per cent of the value of such goods, whichever is less; and such authority or officer may release the goods, if seized, on payment of the penalty imposed or on furnishing such security for the payment thereof as it may consider necessary. R.50. Procedure for search and seizure under sec .....

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mitted to witness the search. (d) If any building or place is an apartment in the actual occupancy of a woman, who according to custom does not appear in public, the officer shall afford her every reasonable facility to withdraw. (e) Search of person may be made, but in case of a woman, it shall be carried out by a woman. (f) A list of goods, articles and documents seized in the course of the search and of the places in which they were found shall be prepared by such officer and shall be signed .....

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of two witnesses. (b) While making seizure of accounts, registers and documents, a seizure-memo shall be prepared by such officer and reasons for seizure shall be recorded therein. (c) The seizure-memo shall also contain the list of the accounts, registers and the documents seized. (d) The seizure-memo shall be signed by the officer who effects seizure, by the dealer or the person concerned and by the witnesses. (e) One copy of the seizure-memo shall be tendered by the officer making seizure to .....

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thorized officer could not have inspected three floors of the business premises as also eleven godowns in the given time and record of the Assessing Officer does not show in what manner the stock has been actually found and weighed by the authorized officer. Merely stating that 7415 Kg of utensils has been found is unacceptable. It is further a finding of fact that the utensils contained katori, glass, Jag, Jar, Parat, Bhagona etc. which are of different sizes and of different weights but the au .....

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