2010 (11) TMI 894 - HC - VAT and Sales Tax

High Court overturns Tax Board decision, upholds penalty cancellation by Deputy Commissioner. Importance of timely document submission stressed.

Assistant Commercial Tax Officer, Flying Squad, Alwar Versus Electrolux Kelvinator Ltd. and Another

The High Court set aside the Rajasthan Tax Board's judgment but affirmed the setting aside of the penalty order by the Deputy Commissioner (Appeals). The ... Whether the Rajasthan Tax Board correct in dismissing the appeal vide judgment dated August 2, 2007, on the ground that the order of assessment was passed against owner of the goods and not against in charge of the goods and matter relates to the period prior to March 22, 2002 when section 78(5) of the Act of 1994 was amended, therefore, no order could have been passed against the owner of the goods, which is under challenge in this revision petition preferred on behalf of the Department? Held that:- The impugned judgment dated August 2, 2007 passed by the Rajasthan Tax Board in Appeal No. 1706/2006/Alwar is set aside but it is also held that the order of penalty dated April 8, 1999 was rightly set aside by the Deputy Commissioner (Appeals) vide order dated November 24, 2005. In these circumstances, the revision petition is dismissed in limine on the basis of principles laid down in the case of D.P. Metals case [2001 (10) TMI 881 - SUPREME COURT OF INDIA] Issues:- Assessment of penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 for not accompanying declaration form ST 18A with goods.- Interpretation of the term 'person in-charge of the goods' under section 78(5) of the Act.- Applicability of judgments in State of Rajasthan v. D.P. Metals and Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. to the case.- Decision on setting aside penalty order and appeal judgment.Analysis:The case involved the assessment of penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 for failing to accompany declaration form ST 18A with goods. The assessing officer issued a show-cause notice to the assessee for the penalty. The assessee contended that the goods were not for sale, but later submitted the declaration form. The Deputy Commissioner (Appeals) allowed the appeal based on the submission of the form before the assessment order, citing a judgment by the apex court in State of Rajasthan v. D.P. Metals.The assessing officer appealed to the Rajasthan Tax Board, which dismissed the appeal stating that the order was against the owner of the goods and not the in-charge, and the relevant section was amended after the period in question. The petitioner argued that the Rajasthan Tax Board's decision contradicted the judgment in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd., which interpreted 'person in-charge' to include the owner.The High Court noted the conflicting interpretations and rulings. It found that the submission of the declaration form before the assessing officer should have precluded the penalty, as per the judgment in State of Rajasthan v. D.P. Metals. The court also emphasized that the term 'person in-charge of the goods' includes the owner, as per the judgment in Bajaj Electricals Ltd. The court held that the penalty order was rightly set aside by the Deputy Commissioner (Appeals) and the Rajasthan Tax Board's decision was to be overturned.In conclusion, the High Court set aside the Rajasthan Tax Board's judgment but affirmed the setting aside of the penalty order by the Deputy Commissioner (Appeals). The revision petition was dismissed based on the principles established in the D.P. Metals case, emphasizing the importance of submitting required documents before penalties are imposed.