ORDER : Mr. Jainendra Kumar Ranka, J. 1. Instant petition is directed against order dt 16.1.2008 passed by Rajasthan Tax Board, Ajmer, in appeal no.844/2007/Jaipur, whereby the appeal filed by respondent assessee, has been allowed. 2. Brief facts noticed are that a survey was conducted at the business premises of respondent on 2.3.2001 in the presence of Shri Shantilal Jain, the Proprietor of said concern. It was noticed that the respondent is maintaining books on computer. At the time of survey the officers found that in the room above computer room a godown is situated where 90 cartons of Pack Chain (Zip) with mark ‘H.L.’ were found noticed and on enquiry the assessee stated that the same were purchased from Delhi, however, despite of providing time, the assessee did not produce the necessary purchase bill, challan, builty or/and other material and on the contrary it was found that the said items were not recorded in the books of account. Accordingly the officer prepared a stock statement. A show-cause notice u/s 77(8) of the RST Act, 1994 was issued for hearing on 8.3.2001, however, the respondent assessee filed written reply on the spot contending, inter alia, that the hearing be concluded then and there and he was not interested to appear on 8.3.2001 and taking into consideration the above factum of not availing an opportunity to provide the material on a later date, the Assessing Officer passed an order on 2.3.2001 holding that the assessee has failed to justify accounting of the said goods being not supported with bills and vouchers or not having been recorded in the books of account, were kept with the intention of evasion of tax and accordingly imposed penalty of Rs.1,30,500/-. 3. The matter was assailed before the Dy. Commissioner (Appeals) before whom the assessee sought to place purchase bill, voucher, builty and other material, so also contended that the said goods are recorded in the books of account and since there was pressure/coercion, therefore, the assessee accepted the charge/guilt but in the light of the explanation before the Dy. Com. (A) as well as the same being supported with voucher, bill etc. the penalty is not leviable. However, the Dy. Com. (A) rejected the appeal. 4. Com. (A) as well as the same being supported with voucher, bill etc. the penalty is not leviable. However, the Dy. Com. (A) rejected the appeal. 4. On a further appeal before the Tax Board resulted into deleting the penalty and the Tax Board took into consideration that the goods were received a day early of the survey and was purchased through ‘C’ form, and once it is supported by purchase bill, builty and recorded in the books of account, the penalty was not leviable and accordingly accepted the appeal and deleted the penalty. 5. Learned counsel for the Revenue vehemently contended that the order of Tax Board is perverse, who took into consideration additional material which was not found and which was not produced at all before the AO conducting survey. Admittedly, before the AO when it was accepted that the assessee is unable to produce bill, voucher, builty etc., then no occasion arose for producing it later and it seems that the assessee after the penalty was imposed brought such documents, and the same being in the nature of additional evidence, unsupported by evidence ought not to have been taken into consideration. 6. Learned counsel further contended that the statements are voluntary and by no stretch of imagination it can be said that the assessee was pressurised or coerced to give such statements. Stock taking was conducted in the presence of two independent witnesses and in the presence of the assessee and even the AO granted time, show cause notice was given of a date much later granting adequate time but the assessee finding that he had no bill or voucher, filed an explanation that he is unable to produce any document and that even the said unaccounted stock is not entered in the books of account. Learned counsel further contended that there was no retraction or resiling of the statements before the AO even after completion of survey or before the senior officers and, therefore, the claim after obtaining the material ought not to have been considered by the Tax Board. Learned counsel contended that the instant case is squarely covered by the judgment rendered in the case of ACTO, Ward-II v. B.C. & Company & Anr. (2013) 66 VST 3 (Raj.), and the order of the Tax Board requires to be reversed. 7. Learned counsel contended that the instant case is squarely covered by the judgment rendered in the case of ACTO, Ward-II v. B.C. & Company & Anr. (2013) 66 VST 3 (Raj.), and the order of the Tax Board requires to be reversed. 7. Per contra, learned counsel for the assessee vehemently contended that the order of Tax Board is just and reasonable and is not required to be interfered with and contended that the assessee had no option except to come to the terms of the officer conducting survey and despite the goods duly accounted for, the assessee was forced to give statements to accept that the stock of 90 cartons was unaccounted. Learned counsel contended that the goods were received a day earlier and at-least sufficient time was available to the assessee to make relevant entries and drew attention of the court to contend that the challan, builty of Prince Carrying Corporation, purchase bill, all support the contention of the assessee. He also contended that the freight was also paid to Prince Carrying Corporation on 1.3.2001 i.e. the day when the goods were received. Learned counsel also contended that there is a violation of Rule 50 inasmuch as the statements were recorded but there were no independent witnesses and if recorded in their presence, their names and addresses were not mentioned and, therefore, the mandate of Rule 50 was not fulfilled. Learned counsel also relied on Parle Beverages Pvt. Ltd. v. Collector of Central Excise, Bombay 1998 (98) E.L.T. 585 (S.C.), CTO, Anti Evasion, Udaipur v. M/s. Tulsilal Manila Swarankar, Banswara (1989) (5) RTJS 175, ACTO v. Kishori Shyam Brijesh Kumar [1994] 93 STC 213, ACTO v. M/s. Jain Silver Refinery, Ajmer 1994 STI (Raj) 53, Laxman Das Saraf v. State of Rajasthan & Others [1996] 103 STC 385, M/s. Diamond Marketing Agency, Jaipur v. A.C.T.O. (Anti Evasion-1) Circle-II, Jaipur 2007 (19) Pt.6 TUD 256. 8. I have considered the arguments advanced by the learned counsel for the parties and perused the material including the record of the survey proceedings. 9. 8. I have considered the arguments advanced by the learned counsel for the parties and perused the material including the record of the survey proceedings. 9. On perusal of the record it is noticed that two witnesses were present on the day of survey, namely - (1) Shri Rajeev Jain son of Shri Suresh Chand Sogani, B-11 Saket Colony, Adarsh Nagar, Jaipur, and (2) Shri Indermal Jain, son of Shri Tara Chand Jain, 639, Bordi ka Rasta, Jaipur, therefore, to say that the statements were not recorded in the presence of witnesses or their names and addresses were not written, is contrary to the material on record. The stock taking was undertaken in the presence of the assessee and two witnesses noticed hereinbefore. Not only that, there is a statement recorded on oath of Shri Shantilal Jain, the respondent assessee, on 2.3.2001 which is almost running into 2½ pages, wherein he categorically stated that the books are recorded, cash book and ledger are maintained on Computer by an Accountant, however, the computer is lying in a shop adjacent. He further stated that the officer had verified that there was a last sale bill bearing no.1085 dt 2.3.2001 and there was a last bill purchase bearing no.17129 from M/s. Y.K.K India Private Limited, New Delhi dt 27.2.2001 amounting to Rs.4856/- which was signed by the respondent in the presence of the witnesses and officer. 10. Insofar as the additional stock found in the godown above the Computer room, the assessee categorically stated that these goods have been received from Delhi but there is no purchase bill, challan and even, if time is granted the assessee stated that he will not be able to produce the purchase bill/challan because he does not have the same and for this reason he stated that he has also not been able to record such stock in the books of account. Thereafter he has provided the rates of the various items found, namely 24” @ Rs.6000 per line, 22” @ Rs.5000 per line, 20” @ Rs.4000 per line and 18” @ Rs.3000 per line. He also stated that he has already made the payment of the said purchase but he does not have any receipt of the same because these goods were received by bus on various dates and he does not have even the receipt of fare of the bus. He also stated that he has already made the payment of the said purchase but he does not have any receipt of the same because these goods were received by bus on various dates and he does not have even the receipt of fare of the bus. He further stated that he has purchased the goods from Delhi without bill and challan and with the intention of evasion of tax, and that is why it is not recorded in the books of account. 11. A show cause notice was issued to the assessee u/s 77(8) on 2.3.2001 for hearing on 8.3.2001 and in pursuance thereto a handwritten letter was given to the AO contending that he is unable to produce the bill, voucher and that he accepts the charge/guilt and that it is unrecorded/undisclosed in the books of account and an order may be passed on the spot and he is prepared to pay whatever penalty is leviable. 12. Proceeding-sheet was also drawn by the AO on 2.3.2001 initially on the basis of unrecorded stock found and thereafter again another proceeding-sheet was drawn on 2.3.2001 after the letter was written by the assessee wherein the fact was recorded by the AO that the assessee has filed a reply on the spot accepting the charge/guilt and that the goods were purchased with the intention of evasion of tax and he is ready and prepared to get the matter settled by imposition of penalty. Admittedly, the assessee deposited the penalty of Rs.1,30,500/- on the spot in pursuance to the penalty order and the goods were released to the assessee. 13. Analysing the statements as well as the stock verification in the presence of two witnesses and explanation (reply) to the AO on the spot accepting that the goods were purchased with the intention of evasion of tax, in my view the imposition of penalty by the AO and upheld by the Dy. Com.(A), was just and proper and ought not to have been deleted by the Tax Board. Though it is claimed that the assessee produced certain additional evidence before the Appellate Authorities, but in my opinion the Appellate Authorities ought not to have accepted such an additional evidence without confronting such additional evidence to the AO. Com.(A), was just and proper and ought not to have been deleted by the Tax Board. Though it is claimed that the assessee produced certain additional evidence before the Appellate Authorities, but in my opinion the Appellate Authorities ought not to have accepted such an additional evidence without confronting such additional evidence to the AO. The additional evidence went to the root of the matter, had a material bearing and considering the same by the Appellate Authority, without giving a chance to the Assessing Officer to offer comments, in my view was not at all proper. 14. On analysing the statements, it clearly proves that a reasonable chance of hearing was given by the AO to the assessee to explain the unrecorded/unaccounted stock found of 90 cartons Pack Chain (Zip) but the assessee gave statement on oath which has been analysed. There is no occasion to say that these statements were given under pressure or on account of coercion. Mere saying is not sufficient that too before the Appellate Authorities. 15. Learned counsel for the assessee contended that though the assessee had in possession the purchase bill of UJ Zippers (Pvt.) Limited dt 28.2.2001, builty of Prince Carrying Corporation bearing GR No.3834 of 28.2.2001 of transportation from Delhi to Jaipur and endorsement of one Tarachand who has received freight of the said vehicle on 1.3.2001, a challan outward issued by UJ Zippers (Pvt.) Limited, Faridabad dt 28.2.2001, cash book, purchase register and ledger account of UJ Zippers (Pvt.) Limited, but on account of pressure/coercion was not permitted to place the same before the AO. However, in my opinion it appears to be an afterthought or procured later-on. 16. There are even otherwise contradictions in the statement dt 1.3.2001, and only one or two contradictions are sufficient to dislodge the bills/vouchers namely that the assessee claims that the goods were received through Prince Carrying Corporation and was received by it on 1.3.2001, but even by the close of 1.3.2001 no entry was found recorded in the books of account, whereas the assessee had himself stated that he had purchased the same from Delhi and the goods came by bus. The assessee had also stated that he had already made payment of the same to the Delhi concern, but the cash book produced by the assessee clearly shows that though the purchase is said to be made on 28.2.2001 but no payment was made even upto 31.3.2001 and if ledger account is to be seen of UJ Zippers (Pvt.) Limited in the books of assessee, it transpires that the first payment appears to have been made on 21.6.2001 of Rs.1 lac, another payment of Rs.1 lac on 17.7.2001 and one more payment of Rs.1 lac on 26.12.2001 and even after the close of the next accounting year i.e. 31.3.2002, still an amount of Rs.90,874 appear to be outstanding. 17. It may also be observed that though on the spot last sale bill was found of 27.2.2001 and also last purchase bill which was found recorded in the books of account was 1.3.2001, however, the assessee has before the Appellate Authorities produced purchase register to show the disputed purchase was entered on 1.3.2001 and such books of account, as claimed to be written only on 1.3.2001 which was not found at the time of survey. Therefore, in my view the said material is in itself contradictory to what has been stated by the assessee. Even on facts about the goods having been received by bus and payment having been made when the very alleged documents prove that the goods were received through a transport agency and payment was made by the close of even the accounting year 31.3.2001. 18. Be that as it may, if the assessee had to retract/resile with the so-called statements recorded at the time of survey on oath, the assessee ought to have informed the higher officials by an affidavit or/and other acceptable evidence about coercion/pressure tactics having been inflicted on the assessee at the time of survey. 19. This court in the case of ACTO v. M/s. Khandelwal Food Products [STR No.99 of 2009, decided on 3.10.2016] has taken into consideration that a retraction/resiling of statement ought to be as soon as possible within a reasonable period and by filing an affidavit to the higher administrative authorities and thus the observations as given in the above case are squarely applicable in the instant case. 20. 20. The judgment relied upon by the learned counsel for Revenue in B.C. & Company of this court (supra) is also squarely applicable in the instant case. 21. Learned counsel for the respondent has placed reliance on certain authorities which will be appropriate to deal with. 21.1. The judgment of this court in the case of CTO, Anti Evasion, Udaipur v. M/s. Tulsilal Manila Swarankar, Banswara (supra), was a case where this court had held that goods received on the day of survey can be entered in accounts by the close of the business hours, whereas in the instant case even as per the version of the assessee the goods were received on 1.3.2001 but was not recorded on 1.3.2001 and at-least no books were produced of showing that the goods were recorded even by the close of 1.3.2001, therefore, distinguishable. 21.2. The judgment in the case of M/s. Diamond Marketing Agency, Jaipur v. A.C.T.O. (supra) of this court, is also distinguishable on facts as in that case the court found that there were no two independent witnesses, the statements were not signed by the Manager as also owner of the firm, whereas in the instant case admittedly the statements are duly signed and sealed by the owner and there are two independent witnesses and in the presence of independent witnesses stock taking has been conducted and the procedure under Rule 50 was duly taken care and followed by the AO. 21.3. The judgment in the case of ACTO v. Kishori Shyam Brijesh Kumar (supra) is also distinguishable inasmuch as the court though found that once there is an admission, further enquiry may not be necessary, and this observation supports the contention of the Revenue taking into consideration the judgment of the apex court in Shri Krishan v. Kurukshetra University [ AIR 1976 SC 376 ], but in the said case the court found that without examining the books of account or registers there was no satisfactory finding, therefore, the court deleted the penalty, whereas insofar as the findings in the instant case are concerned, there is a clear cut finding by the AO rejecting the contention of respondent based on the material itself found and no books of account were produced on the spot except stating that they were generated on computer, and the computer is lying elsewhere. 21.4. The other judgments are also distinguishable on facts. 22. 21.4. The other judgments are also distinguishable on facts. 22. In view of the above, the order of Tax Board suffers from infirmity and for the reasons assigned, the penalty was rightly levied by the AO and upheld by the Dy. Com.(A), and wrongly deleted by the Tax Board. The petition succeeds and the order of Tax Board is reversed.