1 S.B. Sales Tax Revision Petition No. 13/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S. B. Sales Tax Revision Petition No. 13/2010 Assistant Commercial Taxes Officer, Bhiwadi Versus M/s. Mishru Lal. Date of Judgment: 09.11.2010 Hon'ble Mr. Narendra Kumar Jain,J. Ms. Arpita Mathur on behalf of Mr. R.B. Mathur, for the petitioner. BY THE COURT:- Heard learned counsel for the petitioner. 2. Assessing officer vide its assessment order dated 20.11.2003 levied penalty of Rs. 69,654/- under Section 78(10-A) of the Rajasthan Sales Tax Act, 1994(hereinafter referred to as 'the Act') for violation of Section 78(2)(b) of the Act. Being aggrieved with the same an appeal was preferred by assessee, which was allowed by Deputy Commissioner(Appeals) vide judgment/order dated 28.04.2005 and order of assessment was set aside. Petitioner preferred an appeal before Rajasthan Tax Board, but the same was dismissed vide judgment dated 17.07.2009, which is impugned in this revision petition. 2 S.B. Sales Tax Revision Petition No. 13/2010 3. Submission of learned counsel for the petitioner is that Deputy Commissioner(Appeals) as well as Rajasthan Tax Board both committed an illegality in setting aside the assessment order passed by assessing officer. It is contended that on checking of the vehicle it was necessary for the vehicle in-charge to produce the documents containing seal of check post, but seal of check post was not there on the produced documents, therefore, penalty was rightly imposed by the assessing officer. 4. I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by Deputy Commissioner (Appeals) as well as Rajasthan Tax Board for setting aside the assessment order passed by assessing officer. 5. Both the appellate authorities have observed that all the relevant documents relating to the goods were accompanied with the vehicle and the required tax had already been paid/collected by the Department, there was no mens rea on the part of the assessee to evade the tax. From the order of assessing officer it is clear that assessee submitted his reply to show cause notice and explained the factual position that there were number of vehicles at the check post and there was no place to park 3 S.B. Sales Tax Revision Petition No. 13/2010 the vehicle, therefore, he was parking his vehicle at another place and all of sudden the vehicle was stopped and checked. The driver of the vehicle was not running as all the relevant documents relating to goods were available/accompanied with him. The said explanation was not accepted by the assessing officer but it was accepted by Deputy Commissioner(Appeals) as well as Rajasthan Tax Board. 6. It is relevant to mention that so far as penalty under Section 78(5) of the Act is concerned, mens rea is not required to be proved, but as far as penalty under Section 78 (10-A) of the Act is concerned, the same has to be considered. The assessee has explained that all the relevant documents were available at the time of checking and tax had already been paid, then there was no question of evasion of tax. The driver was parking the vehicle and before he could produce the documents at the check post, the vehicle was checked, therefore, there was no seal of the check post. When all the relevant documents were available and tax had already been paid then, there was no reason for not producing the documents for putting seal at the check post. Even otherwise, all the documents are necessary to be accompanied with goods, but 4 S.B. Sales Tax Revision Petition No. 13/2010 putting of seal is not necessary. Under these circumstances, I find that reasons assigned by Deputy Commissioner(Appeals) as well as Rajasthan Tax Board for setting aside the assessment order appear to be legally justified and no interference in the same is called for by this Court. 7. The controversial issues involved in the present revision petition are relating to questions of facts and there is concurrent finding of facts by the both the authorities below. Revision petition can be admitted only on question of law, which is not involved in the present revision petition. In these circumstances, I do not find any merit in this revision petition and the same is, accordingly, dismissed. (Narendra Kumar Jain),J. Manoj, Item No.S.1.