JUDGMENT 1. - The Commercial Taxes Officer, Special Circle - II, Jaipur (hereinafter called as the "assessing authority") has filed this application under Section 15(2) (b) of the Rajasthan S vies Tax Act, 1954, (hereinafter referred to as "the Act") with the prayer that the Board of Revenue may be directed to state the case and refer the following two questions for decision by this court:- 1. Whether under the amended phraseology of Section 16(l)(b) of the Rajasthan Sales fax Act from 4-5-64 (by Act No. 13 of 1954), nonpayment of monthly tax envisaged under Section 7(2A) of the Rajasthan Sales Tax Act does not attract the penalty brought out in the Section itself. 2. Whether under the facts and circumstances of the case, the non-applicant assessee firm was not liable to penalty under Section 16(L)(e) of the Rajasthan Sales Tax Act on account of the concealment of taxable transactions. 2. The facts which have given rise to this application may be briefly stated : M/s. R.Y. Durlabhji, is a firm dealing in the purchase and sale of precious stones. In respect of the assessment year 1967-68, the said firm is alleged to have purchased precious stones on January 20, 1965 from Minmlal Surana for a sum of Rs. 1,90,000/-. The case of the department is that out of the aforesaid quantity of precious stones, no purchase tax was paid by the assessee in respect of precious stones of the value of Rs. 1,60,000/-, although the same were recut, reshaped and exported out of India. The assessing authority held that the assessee was liable to make payment of purchase tax in respect of the purchase of the aforesaid precious stones of the value of Rs. 1,60,000/-. Besides that, after giving notice, the assessing authority also held that the assessee was liable to pay a penalty under Section 16(1)(b), 16(l)(e) and 16(I)(k) of the Act, in respect of the aforesaid transaction and imposed a penalty of Rs. 482.04 under Section 16(1)(b) and Rs. 2,500/- under Section 16(l)(b) and Rs. 100/-under Section 16(1)(k) of the Act, upon the assessee. So far as the imposition of penalty under section 16(1)(k) is concerned, the assessee did not raise any objection But in respect of the penalties imposed upon him under Section 16(l)(b) and 16(1)(e) of the Act, the assessee filed an appeal before the Deputy Commissioner (Appeals-I) Commercial Taxes, Jaipur. 100/-under Section 16(1)(k) of the Act, upon the assessee. So far as the imposition of penalty under section 16(1)(k) is concerned, the assessee did not raise any objection But in respect of the penalties imposed upon him under Section 16(l)(b) and 16(1)(e) of the Act, the assessee filed an appeal before the Deputy Commissioner (Appeals-I) Commercial Taxes, Jaipur. We may also mention here that, in the proceedings arising out of the assessment of purchase tax, the Board of Revenue held that no purchase tax was payable on the aforesaid transaction relating to the purchase of precious stones worth Rs. 1,90,000/- and a reference, being D.B. Sales Tax Reference No. 46 of 1975, is pending before this Court with regard to the question as to whether any purchase tax was or was not payable in respect of the aforesaid transaction. The Deputy Commissioner (Appeals-1) held that the assessee acted in a bona fide belief that he was not-liable to the payment of purchase tax as such penalty under Section 16 (1) (b) and 16(1)(e) could not be imposed upon the assessee and allowing the appeal, he set aside the penalty imposed under the aforesaid two clauses of Section 16 of the Act, by his order dated June 17, 1972. The assessing authority preferred a revision petition before the Board of Revenue. A single member of the Board of Revenue, who heard the matter, can e to the conclusion that the assessee bona fide believed that no purchase tax was leviable and as such he did not disclose these transactions in his turnover, despite the fact that these transactions were entered in the account books of the assessee. In this view of the matter, the revision application was rejected and it was held that penalties under Section 16(I)(b)& 16(l)(e) of the Act were not-leviable upon the assessee. A special appeal was thereafter filed by the assessing authority before a Division Bench of the Board of Revenue, but the same w as also dismissed by the order dated April 14, 1975. A special appeal was thereafter filed by the assessing authority before a Division Bench of the Board of Revenue, but the same w as also dismissed by the order dated April 14, 1975. The assessing authority then submitted an application before the Board of Revenue under Section 15(1) of the Act for making a reference to this Court and the same was also rejected on October 20, 1975 on the ground that the Deputy Commissioner (Appeals-1) and the Board of Revenue, both in revision and special appeal, have concurrently held that the assessee had bona fide believed that no purchase tax was leviable in respect of the transaction of purchase of precious stones in dispute and as such the penalties under Section 16(1)(b) and 16(l)(e) of the Act could not be imposed It was also observed by the Board of Revenue that the liability to pax tax comes into existence at the moment the dealer makes either purchases or sales, but the same cannot be enforced until the quantification is effected by assessment proceedings and as such it cannot be said that the failure of the assessee to pay purchase tax was without any reasonable cause. The assessing authority has now filed this application under Section 15(2)(b) of the Act before this court, as the Board of Revenue refused to make a reference in this case. 3. We have heard learned counsel appearing for the assessing authority and the assessee. As there is a finding of fact recorded by the Board of Revenue in the present case that the assessee bona fide believed that no purchase tax was leviable on the transaction in question and as such he did not disclose these transactions in his turnover, in spite of the fact that they had been duly entered in his account books and as such no penalties could be imposed upon the assessee under Section 16(l)(b) and 16(1)(e)of the Act. Section 16(l)(b), as it stood at the relevant time provided for imposition of penalty if the assessee "has without reasonable cause" failed to pay within the time allowed, any tax, fee or penalty. Section 16(l)(b), as it stood at the relevant time provided for imposition of penalty if the assessee "has without reasonable cause" failed to pay within the time allowed, any tax, fee or penalty. The finding of the Board of Revenue that the assessee acted under a bona fide belief that no purchase tax was payable is a finding of fact and if such a belief was entertained by the assessee which was also subsequently confirmed by the order of the Board of Revenue, then it cannot be held that the non-payment of tax by the assessee was without any reasonable cause. The question as to whether there was any reasonable cause or not, which led the assessee not to make payment of the tax at the time when it is alleged to be due, is one of fact in the circumstances of the present case. 4. Similarly a penalty under sub-clause (e) of sub-section (1) of Section 16 of the Act could be imposed if the assessee had concealed any particulars from any return furnished by him or had deliberately furnished inaccurate particulars therein. The finding of the Board of Revenue, that the purchase tax was not payable in respect of the transaction in dispute and that the assessee bona fide believed that such tax was not payable, go to show that there was no concealment or deliberate or intentional filing of inaccurate returns by the assessee. The question as to whether there is concealment or not, in the facts and circumstances of the case, is essentially one of fact. In Commissioner of Income-tax, Madras v. Khoday Eswara and Sons (1972) 83 ITR page 369 it has been held by their Lordships of the Supreme Court:- "the conclusions drawn by the Appellate Tribunal are on findings of fact recorded against the department. On these findings of tact, there was no question of law arising tor reference being made to the Might Court. On these findings of tact, there was no question of law arising tor reference being made to the Might Court. Under these circumstances, the High Court was perfectly justified in rejecting the application filed by the appellant under Section 66(2) of the Act." The question of absence of reasonable cause for the failure to pay taxes as well as of wilful concealment, or deliberate or intentional furnishing of inaccurate returns, being essentially questions of fact and in view of the finding of the Board of Revenue that the assessee bona fide believed that no purchase tax was payable in respect of the transaction in question, we are unable to hold that any question of law arises in respect of which the Board of Revenue may be called upon to make a reference to this Court. So far as the first question sought to be referred, we may observe that it does not arise, in the circumstances of the case, when there is a clear finding by the Board of Revenue that no purchase tax is payable in respect of the transaction in question. That finding may be correct or may not be correct and this Court may accept the reference, which has been made to this Court by the Board of Revenue in connection with the aforesaid finding, but all the same, it can safely be said that there was reasonable ground for the assessee to think that no purchase tax was payable. If there could be two views in the matter, out of which the Board of Revenue has taken one, there could be no doubt that the assessee might have bona fide shared the same view which the Board of Revenue has taken in the matter. We may make it clear that we are not expressing our opinion as to whether the view of the Board of Revenue is correct or incorrect, but so far as imposition of the penalty under Section 16 (1) (b) of the Act is concerned, we hold that in face of the concurrent finding of fact recorded by the Board of Revenue, no point of law at all is involved in the present case. Similar is the situation with regard to the question of imposition of penalty under section 16(l)(e) of the Act, because the question of concealment or deliberate and intentional filing of false returns is also a question of fact and as the Board of Revenue having held that there was bona fide belief on the part of the assessee that no tax was pax able, the Board of Revenue was justified in coming to the conclusion that there was no concealment of tax and this finding of fact also cannot be disturbed by this Court. 5. As no question of law arises, the reference application is rejected, but without any order as to costs. *******