1. This revision petition has been filed against the order of the Tax Board dated 22.09.2005 whereby the Tax Board while dismissing the appeal of the asseessee upheld the order of the Deputy Commissioner (Appeals), Kota dated 02.09.2003 for the assessment year 1991-92. The appellate authorities have concurrently held against the petitioner-assessee that on the sale of Hydraulic Excavator by the petitioner-assessee, a registered dealer of stones, was taxable in the hands of the petitioner-assessee, and in the absence of the non-disclosure of such transaction in the Books of Accounts and returns filed by the assessee under the Sales Tax law, the Assessing Authority imposed tax, interest and penalty under Section 16 (1) (i) of the RST Act, 1994 on the assessee by the impugned assessment order dated 04.10.1999.
2. Being aggrieved by the said order of learned Tax Board, the petitioner-assessee is before this Court by way of present revision petition.
3. Learned counsel for the petitioner-assessee, Mr. Dinesh Kumar, submitted that the petitioner-assessee had closed-down the business of sale of stones and the said Hydraulic Excavator was a capital asset of the said assessee, which was sold to its sister concern, namely, M/s Manjeet Stone Company, Kota for a sum of Rs.23 lacs for which the amount was realized by cheque; and therefore, the same was not taxable in the hands of the assessee. He further submitted that since the transaction was duly recorded in the Books of Accounts of the assessee, therefore, the petitioner-assessee was not liable to pay any penalty under Section 16 (1) (i) of the Act. He relied upon the following judgments in support of his contentions: 1.The State of Gujarat v. Raipur Manufacturing Co. Ltd., reported in  19 STC 1 (SC).
2. Commissioner of Sales Tax, Bihar v. Basta Colla Colliery Co. Ltd. reported in (1968) 21 STC 454 (Patna)
3. Commissioner of Commercial Taxes, West Bengal v. Krudd Industries Ltd. reported in  WBTT 127 (West Bengal Taxable Tribunal)
4. State of Orissa v. Orissa Road Transport Company Ltd. reported in  53 STC 329 (Orissa)
5. Lord Venketeshwara Caterers v. Commercial Taxes Officer, Anti Evasion, Zone-I, Jaipur reported in  10 VST 535 (Raj.)
6. Morarji Brothers (Import & Export) Pvt. Ltd. v. State of Maharashtra reported in  99 STC 117 (Bom).
4. On the other hand, Mr. Achintya Kaushik, for Mr. R.B. Mathur, for revenue, vehemently submitted that both the appellate authorities have concurrently found against the assessee, which were the findings of fact, that on account of a search under the Income-tax Act, and consequential orders passed under Section 132 (5) of the Income Tax Act, a copy of which was forwarded to the Assessing Authority under the Sales Tax law, it is only through that source that the Assessing Authority came to know about said transaction of sale of Hydraulic Excavator by the petitioner-assessee during the assessment year in question on which a profit of Rs.1,30,000/- was recorded in the Profit & Loss account produced by the assessee before the Income Tax Authorities; and therefore, the said sale, being taxable sale, made by the assessee during the assessment year in question, the assessee was not only liable to pay tax on the sale but was also liable to pay penalty as the same was never disclosed to the Sales Tax Department in the returns of turnover filed by him, even claiming such sale to be exempted from sales tax and nil turnover returns were filed by the assessee which was assessed as such in the first instance on 20.06.1995. However, upon the said information being received from the Income Tax Department only, the Assessing Authority came to know that said taxable sale of Hydraulic Excavator and, therefore, the assessment order as well as orders passed by the appellate authorities are perfectly justified, and they do not require any interference by this Court in revisional jurisdiction.
5. He relied upon a recent decision of the Hon'ble Supreme Court in the case of Union of India v. Dharmendra Textile Processor reported in (2008) 306 ITR 777 (SC), in which dealing with the question of penalty under Section 271 (1) (c) of the Income Tax Act, 1961 and under Section 11 AC of the Central Excise Act, 1944 and Rule 96 ZO and ZQ of the Central Excise Rules, 1944, the Apex Court has held that these penalties do not have a concept of discretion inbuilt therein. Willful concealment is not essential ingredient for imposing penalties under these provisions. The relevant observations of the Hon'ble Supreme in the said judgment on page nos. 302 and 303 of the reports, are quoted herein below for ready reference: - It is of significance to note that the conceptual and contextual difference between Section 271 (1) (c) and Section 276C of the Income-tax Act was lost sight of in Dilip N. Shroff's case  8 Scale (SC).
The Explanation appended to Section 271(1) (c) of the Income-tax Act entirely indicate the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing the return. The judgment in Dilip N. Shroff's case  8 Scale 304 (SC) has not considered the effect and relevance of Section 276C of the Income-tax Act. The object behind the enactment of Section 271 (1) (c) read with the Explanation indicates that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Willful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276 C of the Income-tax Act. In the Union Budget of 1996-97, section 11AC of the Act was introduced. It has been the position clear that there is no scope for any discretion. In paragraph 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also similar indication has been given. The above being the position, the plea that rules 96 ZQ and 96 ZO have a concept of discretion inbuilt cannot be sustained. Dilip N. Shroff's case  8 Scale 304 (SC) was not correctly decided but Chairman, SEBI's case  5 SCC 361 has analysed the legal position in the correct perspectives. The reference is answered. The matter shall now be placed before the Division Bench to deal with the matter in the light of what has been stated above,only so far as the cases where (there is a) challenge to the vires of rule 96ZQ (5). In all other cases, the order of the High Court or the Tribunal, as the case may be, are quashed and the matter remitted to it for disposal in the light of present judgments. Appeals except Civil Appeal Nos. 3388 of 2006, 3397 of 2003, 3398-99 of 2003, 4096 of 2004, 4316 of 2007, 4317 of 2007, 5277 of 2006, 675 of 2007, 1420 of 2007 and appeal relating to SLPC (C) No. 21751 of 2007 are allowed and the excepted appeals shall now be placed before the Division Bench for disposal.
6. I have heard learned counsels for the petitioner-assessee and Revenue at length and perused the judgments cited at bar and impugned orders.
7. This Court is of the opinion that findings of fact arrived at by all the three authorities below about taxable sale of Hydraulic Excavator made by the assessee in the assessment year in question to its sister concern, which was recorded in the Books of Accounts and profit of Rs.1,30,000/- on the same was entered in the P&L; account produced by the assessee before the Income-tax authorities through whom the sale taxable sale came to the knowledge of the Assessing Authority under the Sales Tax law, are the findings of fact and are binding on this Court, which cannot be said to be perverse in the facts and circumstances of the case; and therefore, they do not give rise to the question of law required to be determined under Section 86 of the RST Act, 1994. Whether the assessee had closed-down business of sale of stones for the year in question or not; Whether registration certificate empowers it to sell even the Hydraulic Excavator as commodity for re-sale or not; and whether sale of Hydraulic Excavator is a sale of capital asset or sale of a commodity in the regular course of business depending upon the entries made in the registration certificate, are all the questions of fact and not question of law.
8. The three authorities below have also concurrently held that sale of Hydraulic Excavator by the assessee for Rs.23 lacs was not disclosed by the assessee in the returns of turnover filed by it for the assessment year in question. Had it been disclosed as a sale and claimed to be exempted from sales tax liability, being a sale of capital asset, not falling within regular course of business, it could have been a different matter, but now before this Court in the revisional jurisdiction for the first time this question cannot be permitted to be raised. The findings of fact returned by the Assessing Authority below in this regard as far as imposition of tax on the sale Hydraulic Excavator is concerned, are not required to be disturbed in revisional jurisdiction and to that extent the orders passed by lower authorities deserve to be up-held.
9. However, the question of penalty imposed on the assessee under Section 16 (1) (i) of the Act, which empowers the Assessing Authority to impose a penalty to the extent of double the amount of tax avoided by the assessee, who has concealed any transaction of sale or purchase from his Books of Accounts or registers required by under Section 21 of the Act is concerned, the contention of the learned counsel for the petitioner-assessee has some force. If this transaction of sale of Hydraulic Excavator was not recorded in the Books of Accounts of the assessee, there was no question of profit earned by the said assessee of Rs.1,30,000/- shown in the P&L; account could have arisen. The finding in this regard recorded by the Assessing Authority in the impugned assessment order dated 04.10.1999 is clear that said profit has been shown in the P&L; account of the assessee, therefore, as far as recording of said transaction of sale in the Books of Accounts is concerned, it appears to e beyond the pale of doubt that the assessee had recorded the transaction of the sale in the Books of Accounts and, therefore, imposition of penalty under Section 16 (1) (i) of the Act, does not appear to be justified. This Court in the case of Lord Venketeshwara Caterers (supra) has already held that penalty under Section 65 of the RST Act, 1994 cannot be imposed on the assessee unless the revenue establishes that there is deliberateness on the part of the assessee or conscious concealment of the taxable return with a purpose to avoid or evade tax, and such penalty cannot be imposed merely because the contention of the assessee that particular sale is not taxable is rejected or the explanation furnished by him is not found to be acceptable by the Revenue.
10. This Court is, therefore, of the opinion that imposition of penalty in these circumstances at the rate double the amount of tax imposed by the Assessing Authority was not justified.
11. Consequently, this revision petition is partly allowed and as far as penalty under Section 16 (1) (i) of the Act is concerned, the same is set aside, however, the levy of tax and interest on the petitioner-assessee in these circumstances, is up-held. No costs.