Aggrieved by the aforesaid order dated 29.03.2005 of the Deputy Commissioner Appeals, Bikaner the appellant herein preferred an appeal before the Rajasthan Taxation Board, Ajmer, which was heard and disposed of by the Taxation Board by allowing the same vide its order dated 13.05.2008.
The aforesaid order of the Assessing Officer was challenged by the assessee respondent before the Deputy Commissioner Appeals, Commercial Tax Department, Bikaner under Section 84 of the Act of 1994, which was allowed by the Appellate Authority by order dated 29.03.2005 by setting aside the demand for difference of tax imposed at 2 per cent as also the penalty and interest.
Having held thus, the Taxation Board allowed the appeal and order dated 29.03.2005 passed by the Deputy Commissioner Appeals, Bikaner was set aside and order passed by the Tax Assessing Officer was restored.
The present appeal, as stated hereinbefore, is directed against the aforesaid two orders passed by the High Court as also by the Taxation Board.
By the aforesaid order the Taxation Board modified its earlier order to the extent of holding that as the assessee respondent had declared all his sales in the books of accounts, in that situation, in order to levy penalty, department has to also prove additionally, that there was a mala fide intention on the part of the assessee respondent for tax evasion, which is number revealed in the present case.
Being aggrieved by the aforesaid order passed by the Taxation Board a Revision Petition was preferred by the appellant before the High Court of Rajasthan, Jodhpur Bench under Section 86 of the Act of 1994.
It was further held that as the mala fide intention of the assessee respondent for tax evasion has number been proved and since numbersuch evidence is available on record from which it companyld be established that the assessee respondent had the mala fide intention behind recovering the tax at the rate of 8 per cent, the order of levying penalty is number justiciable.
From the aforesaid narration of facts it is crystal clear that the earlier order dated 13.05.2008 passed by the Taxation Board was interfered with and modified by the Taxation Board itself under its order dated 22.01.2009.
In the said order dated 22.01.2009, the Taxation Board proceeded on the ground that the said application was in the nature of Amendment Application praying for amendment of its judgment and order dated 13.05.2008.
The Taxation Board by its order dated 13.05.2008 was disposing of an appeal filed against the order dated 29.03.2005 passed by the Deputy Commissioner Appeals.
The assessment of the assessee respondent for the Assessment Year 2001 02 was companypleted by the Assessing Officer under Section 29 7 of the Rajasthan Sales Tax Act, 1994 for short the Act of 1994 holding that the tax on thermo ware and vacuum ware, which were the articles sold by the assessee respondent during the relevant assessment year, should be levied Sales Tax at 10 per cent instead of 8 per cent, treating them as separate articles from plastic goods products.
The assessee respondent thereafter filed a rectification amendment application purportedly under Section 37 of the Act of 1994, which was decided by the Rajasthan Taxation Board, Ajmer by passing an order dated 22.01.2009.
The High Court, however, held that numberquestion of law arises out of the order passed by the Taxation Board for companysideration and, companysequently, the Revision Petition was dismissed.
After recording the aforesaid findings, the Taxation Board passed an order dated 22.01.2009 to the extent of amending its previous order dated 13.05.2008 and set aside the order passed by the Deputy Commissioner Appeals, Bikaner dated 29.03.2005 on the issue of tax evasion only, however, maintained the finding on the issue of penalty.
The said order dated 22.01.2009 is practically challenged in the present case on the ground that the said order was passed by the Taxation Board in excess of its jurisdiction.
Contention raised on behalf of the appellant is that the Taxation Board companymitted a jurisdictional error in amending and reviewing its earlier order dated 13.05.2008 while exercising the power of rectification of a mistake apparent on the face of the record.
The said order dated 22.01.2009 was passed on the basis of an Amendment Application filed by the assessee respondent under Section 37 of the Act of 1994.
By the aforesaid order dated 13.05.2008 the Taxation Board upheld and accepted the companytention of the appellant herein that thermo ware is number similar to plastic product and that rather they are two different products articles, which in fact is also proved and established from the documents on record.
The Taxation Board companysidered various documents placed on record including invoices and, thereafter, on appreciation thereof, it was held that plastic goods and thermo ware are two different articles as was indicated from the invoice itself.
Dr. MUKUNDAKAM SHARMA, J. Leave granted.
This appeal is directed against the judgment and order dated 03.05.2010 passed by the Rajasthan High Court, Jodhpur Bench, in S.B. Civil Sales Tax Revision No.
Consequently, the liability of difference of tax at 2 per cent along with surcharge, interest and penalty was also levied.
74 of 2010, whereby the High Court dismissed the said Revision Petition preferred by the appellant herein and upheld the order dated 22.01.2009 passed by the Rajasthan Taxation Board, Ajmer, wherein the Taxation Board interfered and modified its earlier order dated 13.05.2008.
