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2005 DIGILAW 318 (RAJ)

Dan Singh v. State of Rajasthan

2005-02-03

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. The petitioner aggrieved against the notice Annex.-3 and proceedings taken in pursuance of the said notice which ultimately culminated in passing order dated 3rd Nov., 2002. 2. According to the learned Counsel for the petitioner, the petitioners vehicle was alleged to have been apprehended and at that time relevant documents were found with the vehicle. The allegation against the driver of the vehicle is that the petitioners driver did not stop the vehicle on the check post and did not obtain transit pass as required under the law. Therefore, notice has been issued by the Assistant Commercial Taxes Officer, Flying Sqaud, Sirohi, calling upon the petitioner to show cause why penalty under Sec. 78 (10) A to the extent of 50% of the cost of the goods may not be imposed against the petitioners who are driver and owner of the truck. 3. According to the learned Counsel for the petitioner, it is clear from the notice Annexure-3 which was issued under Sec. 78(10) A of the Rajasthan Sales Tax Act, 1994, that the authorities themselves found all relevant documents with the vehicle and only allegation against the petitioner is that the petitioner did not stop the vehicle and did not obtain, transit permit. Petitioner denied in the writ petition all these allegations. However after issuance of the notice by this Court in petitioners writ petition and after an interim order passed by this Court on 1st Nov., 2002, Assessing authority passed order imposing penalty at the rate of 50% of the costs of goods amounting to Rs. 59,532/- 4. Learned Counsel for the petitioner submits that in identical facts and circumstances of the case, though in the matter of owner of the goods, this Court entertained the writ petition and allowed the writ petition (Tax up Date Vol. 4 Part 1 page 20) Tajiander Pal vs. State & Anr. Not only this when the State preferred D.B. Special Appeal, which was decided by the Division Bench, (Tax up Date Vol. 6 part 3 page 84). The Division Bench of this Court held that the imposition of penalty was absolutely without jurisdiction. 4 Part 1 page 20) Tajiander Pal vs. State & Anr. Not only this when the State preferred D.B. Special Appeal, which was decided by the Division Bench, (Tax up Date Vol. 6 part 3 page 84). The Division Bench of this Court held that the imposition of penalty was absolutely without jurisdiction. According to the learned Counsel for the petitioner, even the imposition of penalty as kept (5% in place of 50%) by the learned Single Judge was not quashed only because of the reason that the petitioner in that case did not prefer the appeal challenging the imposition of 5% penalty. It is also submitted that while deciding D.B. Special Appeal, the Division Bench has very categorically held that, all requisite documents were available and were found in order by the officer authorised. The Division Bench held "that the core of the provision of Sec. 78 interwoven with rule to prevent or check avoidance or evasion of tax, therefore, where no ground of evasion or avoidance of tax can be made out with the alleged breach of Sec. 78 the imposition of penalty cannot be sustained." 5. In view of the above, learned Counsel for the petitioner submits that not only notice (Annexure-3) which has been issued to the petitioner deserves to be quashed and set aside but proceedings in pursuance thereof be quashed including the order dated 3rd Nov., 2002, which has been passed after filing of the petitioners present writ petition. 6. Learned Counsel for the respondents submitted that this is a clear case of avoiding the tax and it is clear from facts that on 3rd Nov., 2002 the vehicle was taken without stopping at check post and the driver of the vehicle did not produce the documents. Not only this when the driver tried to take away the goods in the vehicle without stopping at check post, Flying Squad followed the vehicle and caught vehicle after about 3-4 KM. away from the check post. According to the learned Counsel for the respondents, the present writ petition is not maintainable as the writ petition has been filed only against the show cause notice and, secondly, the order dated 3rd Nov., 2002 is appealable order. 7. I have considered the submissions made by learned Counsel for the parties and perused the facts of the case. According to the learned Counsel for the respondents, the present writ petition is not maintainable as the writ petition has been filed only against the show cause notice and, secondly, the order dated 3rd Nov., 2002 is appealable order. 7. I have considered the submissions made by learned Counsel for the parties and perused the facts of the case. It is clear from the show cause notice Annexure-3 dated 26th Oct., 2002 that in the notice, it is mentioned that vehicle No. RNJ 7537 was stopped when vehicle was going towards Ambaji after crossing check post. At that time, concerned authority found that the vehicle was not stopped on Ambaji check post and vehicle was taken without taking transit pass. On this allegation alone the authority opined that the driver of the vehicle violated Sec. 180 (1) of the Act of 1994. It is not in dispute that no proceedings under Sec. 78(5) have been initiated for avoidance of tax. In the order which was passed after above show cause notice dated 3rd Nov,. 2002, it is mentioned that the vehicle was not stopped at the check post. The only allegation against the petitioner in both the notices as well as in the impugned order dated 3rd Nov. 2002 is to the effect that the vehicle was not stopped at the check post and proper seal was not obtained nor transit pass was obtained by the driver of the vehicle. 8. In view of above, the case of the petitioner is squarely covered by the decision of Division Bench of this Court delivered in the State of Rajasthan vs. Tajinder Pal (Supra). The Division Bench of this Court very categorically held that where no ground of evasion or avoidance of tax can be made out with the alleged breach of provisions of Sec. 78 the imposition of penalty cannot be sustained. Division Bench has also observed that all requisite documents were present when the officer authorised under Sub-sec. (3) required the person carrying such goods to produce such documents. Here in case in hand the documents were found in order on spot itself . In these facts, there is no violation of Sec. (5)of Sub-sec.(8)of Sec. 78 of the Act. 9. Division Bench has also observed that all requisite documents were present when the officer authorised under Sub-sec. (3) required the person carrying such goods to produce such documents. Here in case in hand the documents were found in order on spot itself . In these facts, there is no violation of Sec. (5)of Sub-sec.(8)of Sec. 78 of the Act. 9. In view of above, when the very foundation of avoidance of tax is missing, the petitioner cannot be non-suited on the ground of alternate remedy, particularly, the facts in this case reveals that the controversy is squarely covered by the Division Bench Judgment of this Court. 10. In view of above, writ petition of the petitioner is allowed. The show cause notice dated 26th October , 2002 and order passed in pursuance of said notice dated 3rd Nov., 2002 are set (sic) and quashed and penalty if recovered form the petitioner, the same may be refunded to the petitioner.