JUDGMENT : JAINENDRA KUMAR RANKA, J. Heard finally. 2. All these petitions are directed against orders dt. 26.9.2012 and 8.10.2012 passed by the Rajasthan Tax Board whereby petitioners' appeal has been partly allowed. Assessment years involved are 2006–2007 to 2009–2010, and since common questions are involved, the petitions are being decided by this common order. 3. The issues raised by the assessee in the instant petitions revolves on - (a) ex post facto discount which was given to the buyers; (b) imposition of penalty u/s. 61 on the premise that the assessee did not disclose in the return of sales the turnover of two branches, namely Udaipur and Banswara. 4. Brief facts noticed are that the petitioner is a Limited Company and is in the business of manufacturing/producing of various products namely, polymer, PSF, and Petroleum Products and sale thereof to various registered dealers/consumers and has branches at different places in the State of Rajasthan. The petitioner allows certain discount to the prospective buyers to attract sale and also allows discount if the consumer/prospective buyer pays amount within a specified period and, therefore, claim was made that in view of Explanation II of sec. 2(36) the assessee enures for reduction from the sale price, such discount allowed. It was also noticed by the Assessing Officer that in the case of R.S.W.M. Ltd. Gulabpura (Bhilwara), to whom the assessee had sold substantial sales and admittedly the assessee issued VAT invoice to R.S.W.M. Ltd., who was entitled to benefit/credit of input tax credit which was received by the assessee. However, on further inquiry it was found that the tax which was collected by the assessee from R.S.W.M. Ltd., was not deposited in the Treasury account nor even a return disclosing turnover of Banswara branch and Udaipur branch was filed and disclosed. 5. Accordingly, show cause notice was given and the assessee contended that it enures for reduction of the discount under Explanation II of sec. 2(36) as the discount has been allowed. 5. Accordingly, show cause notice was given and the assessee contended that it enures for reduction of the discount under Explanation II of sec. 2(36) as the discount has been allowed. Insofar as the issue of non disclosing of turnover relating to Banswara and Udaipur branches is concerned, it is contended that by mistake of the staff in the return turnover could not be disclosed nor tax deposited and immediately as soon as the fact came to the notice, the tax was deposited and the returns were filed and thus contended that there is no case of evasion or avoidance of tax and prayed for allowing both the relief on account of discount as well as non initiation of proceedings u/s. 61. However, the AO was not satisfied and did not reduce the discount, which according to the AO was not in accordance with sec. 2(36) as neither there was any agreement nor any other justification shown and merely providing discount after the sale was concluded, it could not have been allowed and accordingly disallowed. 6. Insofar as the penalty is concerned, the AO held that the assessee duly collected VAT and it was the duty of assessee to have deposited the VAT within the period prescribed under the law and the same having not been done there is clear cut intention of evasion of tax and all the facts were known to the assessee or its authorised officers and it is not a small turnover which could have been hidden, and which is to the extent of Rs. 8.56 crore of Banswara branch and Rs. 34.24 crore in the case of Udaipur branch. Thus the AO was satisfied that penalty is to be levied and had accordingly imposed penalty. 7. The matter travelled before the Dy. Commissioner (Appeals), who also upheld the assessment order on both the issues and dismissed the appeal of assessee. On a further appeal by the assessee before the Tax Board also resulted into dismissal of the appeals. 8. Thus the AO was satisfied that penalty is to be levied and had accordingly imposed penalty. 7. The matter travelled before the Dy. Commissioner (Appeals), who also upheld the assessment order on both the issues and dismissed the appeal of assessee. On a further appeal by the assessee before the Tax Board also resulted into dismissal of the appeals. 8. Learned counsel for the petitioner vehemently contended that the assessee did disclose the discount which was to be allowed to the prospective buyers and discounts are granted to attract the buyers and when the amount is paid, by the prospective buyer within the prescribed period, additional discount was allowed and he contended that there was oral agreement as well as some agreements with the parties which proved that the discount was passed on and once the assessee was able to prove that the discount was allowed to the buyers, it was shown in the invoice, the claim is allowable within the meaning of sec. 2(36) of the Act. 9. Insofar as penalty is concerned, learned counsel contended that a bona fide mistake was committed as the branches were new, became operational in that year itself and immediately when it came to notice, the same was rectified by filing a return as also deposited the due tax immediately and thus there was no intention of evasion or avoidance of tax and also contended that before issuance of show cause notice or even before a notice could be issued u/s. 25(1), it was complied with and thus question of imposition of penalty does not arise. 9.1 Learned counsel also contended that the assessee had duly furnished declaration form VAT-47 which also disclosed the said amounts and thus it could not be the intention only with reference to two branches which started production recently. The turnover of the assessee is said to be more than Rs. 1000 crore and the assessee could not have avoided or evaded for a small turnover of less than Rs. The turnover of the assessee is said to be more than Rs. 1000 crore and the assessee could not have avoided or evaded for a small turnover of less than Rs. 50 crore, and thus contended that for a bona fide mistake committed which was rectified immediately, penalty is not sustainable and relied upon following judgments:— CTO v. Shyam Agency, (2014) 40 TUD 47 (Raj), CTO v. Vaishnavi Gas Service, (2016) 45 TUD 59 (Raj), Sree Krishna Electricals v. State of Tamil Nadu, (2010) 26 TUD 1 (SC), Prince Stone Company v. CTO, (2011) 30 TUD 9 (Raj), CTO v. Rajdhani Wines, (1992) 82 STC 362 (RAJ), Bata Shoe Company Private Limited v. The Joint CTO, (1968) 21 STC 135 , Egberts India (P.) Ltd. v. The State of Madras, (1973) 31 STC 569 , Commissioner of Sales Tax v. Thakur Savedekar & Co., (1981) 48 STC 293 (MP), State of Tamil Nadu v. M. Natarajan, (2003) 133 STC 513, CTO v. Sojat Lime Co., (1989) 74 STC 288 . 10. Per contra, learned counsel for the Revenue contended that it is a case of concurrent finding by all the authorities on both issues and in the limited jurisdiction of revision, the finding of fact cannot be interfered. Learned counsel also contended that oral agreements granting discount cannot be considered at all and Explanation II to sec. 2(36) is also very clear and it was for the assessee to prove that the discount was allowed, which was part of the sale price and it was rather in the nature of ex post facto grant of discount which should not have been allowed and rightly disallowed by all the three authorities. 10.1 Insofar as penalty is concerned, learned counsel contended that it is a clear cut case of evasion of tax and all the three authorities have found in unison that the assessee did not come with clean hands. It may be that the turnover of the assessee may be more than Rs. 10.1 Insofar as penalty is concerned, learned counsel contended that it is a clear cut case of evasion of tax and all the three authorities have found in unison that the assessee did not come with clean hands. It may be that the turnover of the assessee may be more than Rs. 1000 crore, that does not mean that it could have avoided or evaded payment of tax which was duly collected from a buyer and not paid within the reasonable time allowed by the Govt., rather the assessee withheld the amount of the State for a considerable long period and it is only when the matter of input tax credit in the case of R.S.W.M. Ltd. came up for verification, this factum was known and immediately action was taken, otherwise had that case not come up for verification, the said turnover may not have been disclosed or tax may not have been paid even by the assessee. Learned counsel also contended that even if in one or two quarters penalty has not been imposed, is no reason to delete the penalty insofar as the penalty imposed in other quarters/years is concerned. It was the dominant duty of assessee to have at-least paid due tax and to have filed return. Even the returns were filed much after the due date prescribed for filing revised return and relied upon the judgment of Union of India v. Dharamendra Textile Processors, (2008) 13 SCC 369 . 11. I have considered the arguments advanced by the learned counsel for the parties and have perused the material on record as also the judgments relied upon by the parties. 12. It would be appropriate to quote “sale price” as given in sec. 11. I have considered the arguments advanced by the learned counsel for the parties and have perused the material on record as also the judgments relied upon by the parties. 12. It would be appropriate to quote “sale price” as given in sec. 2(36) of the Act:— ““sale price” means the amount paid or payable to a dealer as consideration for the sale of any goods less any sum allowed by way of any kind of discount or rebate according to the practice normally prevailing in the trade, but inclusive of any statutory levy or any sum charged for anything done by the dealer in respect of the goods or services rendered at the time of or before the delivery thereof, except the tax imposed under this Act; Explanation I.— In the case of a sale by hire purchase agreement, the prevailing market price of the goods on the date on which such goods are delivered to the buyer under such agreement, shall be deemed to be the sale price of such goods; Explanation II.— Cash or trade discount at the time of sale as evident from the invoice shall be excluded from the sale price but any ex post facto grant of discounts or incentives or rebates or rewards and the like shall not be excluded; Explanation III.— Where according to the terms of a contract, the cost of freight and other expenses in respect of the transportation of goods are incurred by the dealer for or on behalf of the buyer, such cost of freight and other expenses shall not be included in the sale price, if charged separately in the invoice;” 12.1 In my view the assessee has not been able to justify as to how the discount was allowed to the prospective buyers and even no material has been placed by the assessee in this regard before any of the authorities as to whether it was a discount in the invoice as evident from the invoices. The burden was on the assessee, if it was claiming that the discount was allowed to the buyers but the assessee has utterly failed in providing any material. The burden was on the assessee, if it was claiming that the discount was allowed to the buyers but the assessee has utterly failed in providing any material. To say that the discount was allowed and there was oral agreement, cannot be accepted and it is a case of Limited Company and such an oral agreement cannot be said to even exist and the argument is not even worth considering at this stage. Limited Companies have to pass resolution and keep appropriate records, which is lacking in the instant case. In my view insofar as the discount is concerned, the finding reached by all the three authorities is well reasoned and it is an ex post facto discount and such a finding of fact cannot be interfered as no question of law can be said to emerge on this finding. 12.2 Insofar as the penalty is concerned, admittedly the assessee did not disclose the turnover relating to the two branches, namely Banswara and Udaipur and neither paid tax despite the same having been collected by the assessee on the invoices issued by the assessee to R.S.W.M. Ltd. from time to time. Input tax credit is allowable/available to a buyer under sec. 18 of the VAT Act and since R.S.W.M. Ltd. who had paid tax to the assessee, claimed input tax credit and admittedly VAT invoice was issued by the assessee, that means tax was collected and paid by the seller and when it came up for verification, at that level it transpired that neither the assessee paid tax nor returns were filed. It may be a case where prior to issuance of notice or filing of revised return the tax was deposited but the facts as they stand, such a reasoning is not acceptable. Statutory compliances ought to be made and there is a concurrent finding by all the three authorities that the assessee did not come with clean hands before the tax authorities. 12.3 On perusal of sec. 61 it transpires that there is wide power given to the authorities:— “61. Statutory compliances ought to be made and there is a concurrent finding by all the three authorities that the assessee did not come with clean hands before the tax authorities. 12.3 On perusal of sec. 61 it transpires that there is wide power given to the authorities:— “61. Penalty for avoidance or evasion of tax.— (1) Where any dealer has— (a) disclosed taxable turnover of sale of goods in any return furnished by him at a lower rate of tax than the rate of tax as specified under this Act or otherwise furnished inaccurate particulars deliberately in the return furnished by him; or (b) incorporated any transaction of sale or purchase in his accounts, registers or documents required to be maintained by him under this Act at lower rate of tax than the rate of tax as specified under this Act; or (c) concealed any particulars from any return furnished by him; or (d) concealed any transactions of sale or purchase from his accounts, registers or documents required to be maintained by him under this Act; or (e) failed to get himself registered as required under section 11 of this Act and has avoided tax; or (f) avoided or evaded tax in any other manner, the assessing authority or any officer not below the rank of an Assistant Commercial Taxes Officer as may be authorized by the Commissioner, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty in addition to tax payable by him under this Act, a sum equal to two times the amount of tax avoided or evaded. (2) Notwithstanding anything contained in sub-section (1), where any dealer has availed input tax credit wrongly, the assessing authority or any other officer not below the rank of an Assistant Commercial Taxes Officer as may be authorized by the Commissioner shall reverse such credit of input tax and shall impose on such dealer— (a) in case such credit is availed on the basis of false or forged VAT invoices, a penalty equal to four times of the amount of such wrong credit; and (b) in other cases, a penalty equal to double the amount of such wrong credit.” 12.4 The argument of the learned counsel for the assessee that only a small turnover of two branches on account of inadvertence or mistake was not shown, is not acceptable. The turnover insofar as the assessee as stated, may be more than Rs. 1000 crore and the turnover which has not been disclosed is almost Rs. 43 crore, may be a small figure insofar as the turnover of Rs. 1000 crore is concerned, but even Rs. 43 crore cannot be said to be small figure when other cases are taken into consideration. Merely mentioning that there was a mistake committed but no material has been placed as to how such a gross mistake could have been committed by the assessee, and no reasoning worth accepting bear out from records. Had the tax been paid after it was collected, and merely return not filed, then it could have been a reason to justify but even non depositing the amount which was collected from a buyer, after considerable lapse of time, is certainly not acceptable and all the three authorities have rightly held the assessee liable for imposition of penalty which in my view is also just and proper and is not required to be interfered. It is a case of a Limited Company and there are several checks and balances including audits, and where several Chartered Accountants or/and lawyers are engaged who guide an assessee like this from time to time, and it cannot be accepted that all these faltered even after considerable lapse and it is only when input tax credit was claimed by R.S.W.M. Ltd. then it transpired that assessee did not deposit tax. It may be that in one or two quarters the AO has not imposed the penalty, is no reason that the asessee get any benefit out of it and different considerations may be there but to take benefit of such a fact is no reason to delete the penalty when it has been rightly imposed. Accordingly the reasoning given by all the three authorities is well reasoned and I do not find any case for interference. 13. The judgments relied upon by the learned counsel for petitioner, are distinguishable on facts and all these are findings of facts and no question of law can be said to emerge. In my view, the findings reached by all the three authorities in unison cannot be said to be perverse. 14. In view of what has been observed here-in-above, all the petitions being devoid of any merits, are dismissed.