TaxTMI 
TaxTMI 
2015 (9) TMI 1504
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....enue have been dismissed. Since the facts and controversy involved are almost similar, all these petitions are being disposed of by this common order. These relate to assessment years 2006-07 and 2007-08. Brief facts are that the respondent-assessee is manufacturing Sewai (vermicelli) macaroni and pasta with other products and paying tax at four per cent. on such goods. It is claimed that the respondent-assessee has registered office in Andhra Pradesh and a manufacturing unit in the State of Rajasthan. A survey operation was conducted on the premise of the respondent-assessee on October 24, 2007 and during the course of survey operation, the authorized officers found that the respondent-assessee is manufacturing and selling Sewai (vermice....
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.... section 61 by the Tax Board. Counsel for the petitioner-Revenue contended that it is a clear-cut case of evasion of tax as during the course of survey only, it transpired that the assessee was paying tax at four per cent. when it was liable to pay tax at 12.5 per cent. and this position was settled and the respondent-assessee, being represented by eminent lawyers, was aware that it falls within the category of levy of tax at 12.5 per cent. and thus there was evasion of tax of about 8.5 per cent. She further contended that it is only on account of survey operation that this came to the notice of the Revenue otherwise had it not been the case of survey, the same thing would have continued repeatedly unnoticed. She further contended that the....
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....the respondent-assessee has a registered office in Andhra Pradesh where the same rate of four per cent. is applicable on Sewai (vermicelli) macaroni and pasta, etc. He further contended that in other States, namely, Gujarat, Uttar Pradesh, etc., these items are totally exempt under the respective VAT/Sales Tax Act. He further contended that merely because a different rate was applicable, at least the penalty under section 61 cannot be imposed as there was a bona fide belief that only rate of four per cent. is applicable. He relied upon the judgments rendered in the case of Sree Krishna Electricals v. State of Tamil Nadu [2009] 23 VST 249 (SC); [2009] 11 SCC 687, Assistant Commissioner, Anti-Evasion, Rajasthan-III, Jaipur v. Agarwal Alumin....
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....jasthan Value Added Tax Act, 2003. Nevertheless, in my view, it is not a case where the Revenue claims that the assessee did not pay any tax or concealed the particulars of sales, rather there could be a bona fide error about classification of entry as to in which entry the goods do fall. In my view, merely because the rate of 12.5 per cent. may have been applicable on the items which were being manufactured/sold by the assessee and the assessee having shown four per cent., in my view, at least penalty under section 61 may not be leviable in the instant case and on the facts noticed. Even the authorities, i.e., DC (A) as well as the Tax Board have found as a finding of fact that the issue about the rate of tax was certainly debatable as cl....
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....hich are not included in the turnover are disclosed in the dealers' own account books and the assessing authorities includes these items in the dealers' turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside." In the case of Commercial Taxes Officer v. Shyam Agency [2015] 78 VST 75 (Raj), this court following the analogy drawn in the case of Sree Krishna Electricals v. State of Tamil Nadu [2009] 23 VST 249 (SC); [2009] 11 SCC 687, held in para 12 as under (pages 82 and 83 in 78 VST): "12. Reverting to the facts of the present case, the Tax Board has held that during the period relevant to assessment of tax as against the assessee under the 2003 Act, it was an admitted fact that all sale ....
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....s also elsewhere and mechanically agitate this misdirected revision petition. The question of law as sought to be agitated stands already settled by the judgment of the honourable Supreme Court in the cases of Bharjatiya Steel Industries [2008] 13 VST 514 (SC) and Sree Krishna Electricals [2009] 23 VST 249 (SC); [2009] 11 SCC 687." This court again, in the case of Assistant Commissioner, Anti-Evasion v. Agarwal Aluminium & Company [2013] 60 VST 141 (Raj), dealing a case where there was dispute about classification of entries observed in para 29 as under (page 143 in 60 VST): "29. So far as question of penalty under section 61 is concerned, the appellate authorities below appear to be justified in holding that the penalty under section 61 ....