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of <h1>Court upholds deletion of penalty under Section 78(5) by Assessing Officer. Valid documents lead to penalty removal.</h1> <h3>Assistant Commercial Tax Officer, Flying Squad, Bhiwadi, District Alwar (Raj.) Versus Fakir Sons Perachem Pvt. Ltd., Rajasthan Tax Board, Ajmer</h3> The court upheld the deletion of the penalty imposed under Section 78(5) by the Assessing Officer. The Deputy Commissioner (Appeals) accepted valid ... Imposition of penalty u/s 78 (5) - goods were not intended to be delivered in the State of Rajasthan and merely Rajasthan comes on way from Ahemadabad to Delhi - is penalty justified? - Held that: - the vehicle was merely passing through the State of Rajasthan and the documents produced/proved that it was being transported from Ahemadabad to Delhi and once it is a finding of fact recorded by all the 3 authorities, no interference is caused. In my view the Assessing Officer has no jurisdiction to examine further if the vehicle was not intended for this State. Deficiency/discrepancy if any was required to be conveyed to the Assessing Officer of Consignor/ Consignee who could have taken appropriate action - penalty set aside - petition dismissed - decided against petitioner. Issues:1. Imposition of penalty under Section 78(5) by the Assessing Officer.2. Appeal before the Deputy Commissioner (Appeals) against the penalty.3. Appeal by the Revenue before the Tax Board.4. Contention regarding over-ruling of judgment by the Apex Court.5. Validity of penalty imposition based on evidence and jurisdiction of the Assessing Officer.Analysis:1. The judgment deals with a case where a penalty was imposed under Section 78(5) by the Assessing Officer on a vehicle transporting goods from Ahemadabad to Delhi, intercepted near Industrial Area Bhiwadi. The Assessing Officer was not satisfied with the explanation provided by the driver/incharge, leading to the penalty imposition.2. The assessee/respondent appealed before the Deputy Commissioner (Appeals) and provided valid documents and explanations, leading to the deletion of the penalty. The Deputy Commissioner (Appeals) considered the route, intention of delivery, and relevant documents before reaching a decision.3. The Revenue appealed before the Tax Board, which upheld the order of the Deputy Commissioner (Appeals) based on the facts and the judgment in a similar case. The Tax Board considered the explanation and documents provided by the assessee before affirming the deletion of the penalty.4. The petitioner contended that the judgment relied upon by the Tax Board was over-ruled by the Apex Court in a different case. However, the court found that while the reliance on the previous judgment may not be valid, the merits of the case indicated that the goods were merely passing through the State of Rajasthan, and no penalty was justifiable.5. The court examined the evidence, jurisdiction of the Assessing Officer, and the intention of delivery. It was concluded that the Assessing Officer had no jurisdiction to further investigate if the goods were not intended for the State. Any deficiency should have been communicated to the Consignor/Consignee for appropriate action. The court dismissed the revision petition, emphasizing that no penalty was leviable based on the facts presented.
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