STR 10/2010 Assistant Commercial Taxes Officer, Flying Squad, Bharatpur Vs. Khem Chand (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur O R D E R In S.B. Sales Tax Revision Petition No.10/2010 Assistant Commercial Taxes Officer, Flying Squad, Bharatpur Vs. Khem Chand Date Of Order :: 24th February,2010 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Brij Sharma on behalf of Mr. R.B. Mathur, for petitioner. ........... By the Court :- Heard learned counsel for the petitioner. 2. This revision petition is directed against the order dated 16/7/2009 passed by learned Single Member of Rajasthan Tax Board, Ajmer in Appeal No.2734/2005/Alwar by which appeal of the petitioner ACTO (Revenue) has been dismissed. 3. The vehicle bearing no.RJ-02-6158 was stopped on 15/1/2003 in Rajasthan at Saras Chauraha, Bharatpur by the concerned officer of the sales tax department and on demand the driver produced relevant documents required to accompany the goods in transit under section 78 of the Rajasthan Sales Tax Act (in short the Act) but it was found that the said vehicle was not passing through regular route but was passing through STR 10/2010 Assistant Commercial Taxes Officer, Flying Squad, Bharatpur Vs. Khem Chand (2) kaccha rasta and the said goods were not got checked at the check post. Therefore, ACTO imposed the penalty of 50% of value of goods but the said penalty was set aside by the Deputy Commissioner (Appeals) vide its judgment dated 29/11/2004 which was confirmed by the Rajasthan Tax Board vide impugned judgment. 4. It was inter-alia contended by the counsel for the petitioner that it was proved that driver of the involved vehicle was passing through kaccha route without getting the documents checked at check post and thereby he violated the provisions of section 78(2)(b) of the Act, therefore, respondent is liable for penalty of violation of the said provision. 5. I have considered the above submissions. It is not disputed and so also the learned Tax Board found that driver of the vehicle was carrying on necessary papers and invoices, and therefore there was no intention to avoid or evade the tax, and on account of technical error, it was not appropriate to levy the tax. The Division Bench of this Court in the case of State of Rajasthan and another Vs. Tajiander Pal, reported in Tax Up-Date Vol.6 Part 3 Page 84, May16-31, 2003, held that in sub-section 10-A of Section 78 of the Act of 1994, the word 'may' has been used enabling levy of penalty. Thus, it is not imperative in all cases to levy the penalty where there is violation of sub-sec. (10-A). It was further observed that it is STR 10/2010 Assistant Commercial Taxes Officer, Flying Squad, Bharatpur Vs. Khem Chand (3) only in case where there is nexus of any evasion or avoidance of tax with the breach of sub-sec. (10-A) that the penalty can be imposed. In the instant case, as has been discussed, the driver of the involved vehicle was carrying all the necessary papers, invoices of the goods, therefore there appears no illegality in this finding of the Tax Board that there was no intention to avoid or evade the tax. In view of the above, I do not find any impropriety or illegality in the impugned judgment. 6. Consequently, this sales tax revision petition along with stay application is dismissed at the admission stage. (J.R. Goyal),J. V.S. Shekhawat/- Jr. P.A. D1