M/s Mittal, H.s. Mehta, L.i.c. Colony, Ajmer v. For

Order

1. Instant Sales Tax Revision is preferred by petitioner- Department aggrieved from dismissal of appeal No. 1393/2016 on

22.11.2022 passed by Rajasthan Tax Board, Ajmer affirming the order of Appellate Authority, Commercial Tax Department, Ajmer dated 29.01.2016.

2. Office has pointed out a delay of 198 days and to substantiate the reasons of delay, an application under Section 5 of Limitation Act is filed.

3. None present on behalf of respondent despite service of notice.

4. We have considered the application under Section 5 of Limitation Act and after considering the submission and also the grounds as raised in the application, the application is allowed and delay is condoned.

5. Application stands disposed of. [2025:RJ-JP:10644] (2 of 5) [STR-149/2023]

6. Learned counsel for petitioner has submitted that assessee has imported coal from Indonesia for his own use as Contractor but as per statement of PWD, diesel is used for heating bitumen. He further submits that this coal was not used by respondent assessee and same was sold or disposed unofficially. He also submits that this is a case of tax evasion and as per statement of PWD, the Tax Assessee Officer has imposed tax upon respondent but the Appellate Authority and the Tax Board erroneously recorded findings, while set aside the order of Tax Assessing Officer.

7. Heard learned counsel for petitioner and perused the material placed on record.

8. Herein, a dispute is with regard to use of coal imported by respondent tax-assessee. On 10.02.2015, an order of tax assessment was passed by CTO on the ground that respondent- tax assessee has imported non-cooking coal from Indonesia to the value of ₹4.43 crore. It was declared that this coal will be used for heating and increasing temperature of bitumen but as per G- schedule of PWD, coal is not used as fuel rather diesel oil was used, as fuel. The Tax Assessing Officer has searched google and collected a search report, wherein he found that non-cooking coal was used in power industry, steel industry and cement industry.

9. When the department has surveyed the premises of assessee, then it has found that there was no physical stock of coal. Ultimately, a notice was issued and a reply was filed supported with letter dated 02.02.2015 of Executive Engineer, PWD that coal was used to heat bitumen. Several affidavits were also filed, in support of reply but Tax Assessing Officer has [2025:RJ-JP:10644] (3 of 5) [STR-149/2023] imposed tax, penalty and interest to the tune of ₹72.91 lacs. Later, on an appeal was preferred by assessee before the Appellate Authority and same was allowed on 29.01.2016. The Tax Assessing Officer has approached the Tax Board and in absence of substantial question of law, same was also dismissed on

22.11.2022.

10. Herein, the material on record clearly indicate that the tax assessment was made only on the basis of G-schedule of PWD and also on google search report, whereas the assessee has filed certificate of XEN, PWD and affidavits of several persons including laborers.

11. Instant revision petition can only be entertained on substantial question of law and not otherwise. The contention of learned counsel for petitioner clearly indicate that he referred a disputed question of fact and a disputed question of fact is not subject-matter of a revision petition.

12. The definition of substantial question of law was also considered by Hon’ble Supreme Court in case of M.Janardhan Vs. Joint Commissioner of Income Tax (Appeal (Civil) No.4232/2003 order dated 28.01.2005) reported as AIR 2005 SC 1309, wherein a reliance has been placed in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314 and Hon’ble Supreme Court laid down the following test to determine whether substantial question of law is involved. The test are: (i) Whether directly or indirectly it affects substantial rights of the parties, or; (ii) The question is or general public importance, or; [2025:RJ-JP:10644] (4 of 5) [STR-149/2023] (iii) Whether it is an open question in the sense that issue is not settled by pronouncement of this court or Privy Council or by the federal court or; (iv) The issue is not free from difficulty, and (v) It calls for a discussion for alternative view.

13. Herein it is necessary for this Court to consider whether there exist a substantial question of law to entertain present revision petition. The petitioner is required to show perversity in the order of Rajasthan Tax Board and if he is able to establish existence of substantial question of law then this revision petition can be admitted on substantial question of law but without substantial question of law, the revision petition cannot be entertained.

14. A perusal of entire material clearly indicate that if a tax- assessee has committed any act contrary to law, then appropriate action may be taken against him by the Department but to impose a tax, it is necessary that some material be available on record. A tax cannot be imposed only on basis of presumption and assumption. The Tax Assessing Officer has not conducted any inquiry about sale of coal to any other person or firm. There is no proof to establish that tax assessee has illegally sold imported non-cooking coal to any other person. If the cooking coal is not used for the purpose for which it was imported, then required action can be initiated under the law, but herein a tax can only be imposed on sale of imported cooking coal, if there is any proof to utilization in any other field. [2025:RJ-JP:10644] (5 of 5) [STR-149/2023]

15. In view of aforesaid, the facts does not give rise to any substantial question of law, therefore, the instant S.B. Sales Tax Revision sans merits and same is liable to be dismissed.

16. Thus, S.B. Sales Tax Revision / Reference No. 149/2023 is hereby dismissed along with pending application(s), if any. MONU /40 (ASHOK KUMAR JAIN),J