SB Civil Sales Tax Rev. Pet. No.123/2008 ACTO, Pali Vs. M/s. HR Enterprises, Jaipur. 1 SB Civil Sales Tax Rev. Pet. No.123/2008 ACTO, Anti Evasion -I Pali Vs. M/s. HR Enterprises, Jaipur. DATE OF ORDER : - 17.12.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Rishabh Sancheti,for the petitioner. Mr. Anjay Kothari, for the respondent. <><><> Heard learned counsel for the parties. In the present revision petition, following substantial questions of law have been raised by the petitioner which are relevant for the purpose of deciding this revision petition: [i] Whether on the facts and in the circumstances of the case, the learned Tax Board, Ajmer was justified in passing the impugned judgment dated 30.11.2007 vide which the first appellate authority order dated 28.8.2006 has been upheld? [ii] Whether the learned Tax Board has erred in law in holding that prior to 22.3.2002, the penalty under Section 78 (5) of the Act of 1994 for violation of Section 78(2) of the Act of 1994 could not have been SB Civil Sales Tax Rev. Pet. No.123/2008 ACTO, Pali Vs. M/s. HR Enterprises, Jaipur. 2 imposed against the owner of goods? So far as question no. [ii] is concerned, this is no more resintegra in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case of Asstt. Commercial Taxes Officer VS. Bajaj Electrical Ltd reported in 2008 (Vol.10) Vat Reporter 211 wherein it has been held that the expression “person in-charge of the goods” under Section 78(5), RST Act, 1994 include the owner since the word “in movement” do not find place in section 78(5) and as such this expression is winder than the expression “person in charge of goods in movement” under Section 78 (2)(a). In view of the above reason, the tax board's order of rejection of the appeal of the revenue dated 13th Nov., 2007 cannot be sustained as that has been passed following the law which is no more good law in view of the decision of the Hon'ble Apex (supra). Learned counsel for the respondent vehemently submitted that the DC (Appeal) in impugned order dated 28.8.2006 not only held respondent not liable for the tax and penalty on the basis of question of law referred above, SB Civil Sales Tax Rev. Pet. No.123/2008 ACTO, Pali Vs. M/s. HR Enterprises, Jaipur. 3 but also decided the question of law in favour of the assessee and on the basis of question of fact it has been held by the DC (Appeal) in its order dated 28.8.2006 that revenue failed to show that it was a case of evasion of tax by the respondent-assessee. Learned counsel for the revenue rightly pointed out that reasons in detail given by the DC ( Appeal) in its order while considering the question of fact, the same have not been considered the tax board and tax board dismissed the appeal only on the ground of the question of law which too has been contrary to the law laid down by the Hon'ble Apex Court. It appears that DC (Appeal) has decided the question of fact in favour of the respondent-assessee and held that revenue failed to prove that the assessee has evaded the tax and failed to prove that the relevant documents were forged etc., but it appears that the tax board has not applied its mind to the detail factual aspect considered by the DC (Appeal) while considering the relevant documents of the assessee. Since that finding is in favour of the assessee recorded by the first appellate court and the Tax SB Civil Sales Tax Rev. Pet. No.123/2008 ACTO, Pali Vs. M/s. HR Enterprises, Jaipur. 4 Board has not reversed, rather say, not considered this finding in the light of the arguments of the Revenue, therefore, the appeal of the appellant is allowed. The order of the tax board dated 30th Nov., 2007 is set aside. The matter is remanded back to the Tax Board for deciding the appeal of the revenue afresh. Both the parties shall appear before the Tax Board on 19.1.2009. The Tax Board may decide the appeal expeditiously within a period of two months from the date of receipt of this order. Meanwhile, no recovery be affected from the respondent in this matter. (PRAKASH TATIA), J. c.p.goyal/-