STR 1/09 (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.1/2009 Surendra Singh Vs. Commercial Taxes Officer, Anti Evasion, Commercial Taxes Department, Alwar Date Of Order :: 16th March, 2009 Hon'ble Mr. Justice Jitendra Ray Goyal Mr. T.C. Jain, for petitioner. Mr. J.M. Saxena, for respondent. ........ This sales tax revision petition has been filed by the petitioner Surendra Singh, owner of the vehicle, against the order passed by Rajasthan Tax Board, Ajmer dated 1/1/2008 in appeal no.1401/2006. 2. Brief facts of the case are that vehicle no.HR- -10GA-0072 was checked by the sales tax authority near Kharkhari. The goods carried were iron and steel sariyas and according to the driver, the goods under transit were carried from Bhiwadi to Delhi on stock transfer. The driver of the vehicle produced STR 1/09 (2) before the checking officer the GR no.1817 dated 2/8/2005 and declaration form ST18C-0948798. The allegation against the driver of the vehicle is that the petitioner's driver did not get the documents checked from any check post and he was carrying the vehicle through unauthorized route with a view to evade the tax of the transported goods. A show cause notice was served under section 78 (10A) of the Rajasthan Sales Tax Act, 1994 (in short the Act of 1994). A detailed reply was filed by Surendra Singh, owner of the vehicle. After hearing the Commercial Taxes Officer, Anti Evasion, Alwar imposed penalty of Rs.1,11,936/- under section 78 (10A) of the Act of 1994 on 4/8/2005. Aggrieved by the said penalty order Surendra Singh, owner of the vehicle filed appeal before the Deputy Commissioner (Appeals) which was accepted and penalty was set aside vide appellate order dated 30/11/2005. Aggrieved from the said order the department preferred an appeal before the Rajasthan Tax Board, Ajmer who in turn vide order dated 1/1/2008 while restoring the order of the penalty STR 1/09 (3) passed by the assessing authority set aside the order of the Deputy Commissioner (Appeals) dated 30/11/2005. Therefore, this revision petition has been preferred by the petitioner, owner of the vehicle, challenging the order dated 1/1/2008 passed by Rajasthan Tax Board, Ajmer. 3. Heard learned counsel for the parties and perused the impugned judgments. 4. Learned counsel for the petitioner inter alia contended that it is clear from the notice issued under section 78 (10A) of the Act of 1994 that the authority himself was satisfied that all the relevant documents were available at the time of checking and therefore there was no question of having any mens-ria in regard to tax evasion and the only allegation levelled was that goods were being transported through irregular route avoiding passing through the check post, which was otherwise also not correct since there was no check post in between the place of checking and the place from where the goods were loaded for transportation to Delhi. Reliance was placed on the STR 1/09 (4) judgment delivered by the Division Bench of this Court in the case of State of Rajasthan Vs. Tajinder Pal (Tax Update Volume 6 Page 84). 5. Learned counsel appearing for the respondent-department submitted that driver of the vehicle transported the goods through irregular route with a view to evade the tax. 6. I have considered the rival submissions made at the bar. It is not in dispute that no proceedings under section 78(5) of the Act of 1994 have been initiated for avoidance of tax. It was also not the case of the department that documents produced by the driver at the time of checking at Kharkhari were not in order, therefore, the authority did not find any sales tax liability upon the owner of the vehicle and merely because goods were transported through some irregular route the penalty under section 78(10A) of the Act of 1994 has been imposed. In this fact situation, the case of the petitioner is squarely covered by the decision of Division Bench of this Court delivered in the case of STR 1/09 (5) State of Rajasthan Vs. Tajinder Pal Singh (supra) wherein it was held that “where no ground of evasion or avoidance of tax can be made out with the alleged breach of provisions of section 78 the imposition of penalty cannot be sustained. Division Bench has also observed that all requisite documents were present when the officer authorised under sub-section (3) required the person carrying such goods to produce such documents. Here in case in hand the documents were found in order on spot itself. In these facts, there is no violation of sub-section (5) or sub-section (8) of section 78” (sic) it should be sub-section (5) of section 78) of the Act.” 7. In view of the above, when very foundation of avoidance of tax is missing, the petitioner ought not to be held liable for the penalty under section 78(10A) of the Act of 1994. 8. Accordingly, this revision petition is allowed and the order dated 1/1/2008 passed by Rajasthan Tax Board, Ajmer in Appeal No.1401/2006 is set aside and the order dated 30/11/2005 passed by STR 1/09 (6) Deputy Commissioner (Appeals) First, Commercial Taxes, Jaipur is restored. (J.R. Goyal),J. V.S. Shekhawat/- Jr. P.A. D36