Mr. Jainendra Kumar Ranka, J.

1. The instant petition is directed against order dated 29.6.2007 passed by the Rajasthan Tax Board, Ajmer, in Appeal No.752/2008/Alwar, by which appeal of the petitioner has been dismissed.

2. The brief facts noticed are that a survey came to be conducted by the officers of the Anti Evasion Wing at the business premises of the respondent assessee on 28.10.2002, wherein some excess stock was found by the officers concerned and physical stock was also taken. It was noticed by the officers that the stock of Namkeen on spot verification was 6422 kg whereas in the books it was weighted at 3892 kg only and, therefore, there was excess stock of 2530 kg. A show cause notice was given, however, the respondent assessee filed a reply on the spot stating therein that he accepts the excess stock and he has no explanation to offer and that appropriate order be passed. Taking into consideration the aforesaid explanation the officers concerned imposed penalty u/s 77(8) of the Rajasthan Sales Tax Act, 1994.

3. The matter was assailed before the Dy. Commissioner (Appeals), who however taking into consideration that there was violation of R.50 of the Rajasthan Sales Tax Rules, 1995, the witnesses if any were employees of the assessee and they ought to have been independent witnesses, and that an affidavit was also filed before the Appellate Authority, that statements were recorded under coercion and pressure. The Dy. Com. (Appeals), taking into consideration these facts, deleted the penalty and further appeal filed by the Revenue before Tax Board also resulted in dismissal of the appeal upholding the order of Dy. Com. (Appeals).

4. Learned counsel for the petitioner vehemently contended that on the day of survey, excess stock was found and there was no explanation offered and there is no allegation about coercion or pressure on the assessee, which has not been proved at all, and it is a mere allegation not supported by any material or evidence. Learned counsel contended that though show cause notice was given for a later date to the assessee to offer a reasonable explanation supporting with bills and books but when the assessee himself requested to pass order on the spot accepting the excess stock, the observation of the both the Appellate Authorities is perverse and contrary to the material on record. Nothing was required to be done by the AO when the assessee himself agreed to the excess stock having been found and accepted. Learned counsel also contended that how this explanation was offered before the Dy. Com. (Appeals) that the so-called two witnesses are the employees/workers of the assessee and had it been so, such an additional affidavit placed before the Dy. Com. (Appeals) ought not to have been accepted without seeking explanation from the AO. She also contended that the officers of the Anti Evasion Wing have taken due precautions of R.50 of the Rules, and the finding of the Tax Board so also of the Dy. Com. (Appeals) is perverse and require to be interfered with. Learned counsel also relied upon judgment passed in ACTO, Ward- II v. B.C. & Company & Another (2013) 66 VST 3 (Raj), where on identical facts this court had upheld the claim of Revenue.

5. Per contra, learned counsel for the assessee contended that both the Appellate Authorities have come to a categorical finding that the survey was not conducted in a proper and just manner, coercion and pressure was built on the assessee and the finding recorded that both the witnesses, were employees/workers of the respondent assessee and they could not be said to be independent witnesses, and thus supported the order of both the Appellate Authorities and also contended that it is a finding of fact.

6. I have considered the arguments advanced by the learned counsel for the parties and perused the impugned order so also the other orders on record and the record of Assessing Officer in particular, and in my view the orders of Tax Board and Dy. Com. (Appeals) a