1991 (1) TMI 400

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....n the night he was intercepted by the mobile squad. Before the mobile squad the assessee produced 11 vouchers numbered 43 to 53 with the names of the sellers incorporated in these vouchers. One loose paper regarding entry about purchase of this mentha oil was also found with the assessee in which the names of the sellers were not incorporated. The assessee also produced a certificate of arhatia M/s. Jugal Kishore Rajiv Kumar about this purchase. Thereafter, the department enquired from the two sellers as to whether they had sold mentha oil to the assessee. This was done on June 28, 1985. These two sellers disowned of having made any sale of the mentha oil to the assessee. Thereupon, the Sales Tax Officer drew proceedings under section 15-A(....

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....not sell the mentha oil to the assessee. According to the learned counsel for the assessee the mens rea is an ingredient under clause (d) of section 15-A(1) of the Sales Tax Act. It may be mentioned that the penalty proceedings are quasi-criminal in nature and mens rea is an essential ingredient of an offence and mens rea has to be proved by the department. Unless men rea is shown to have been present, the assessee cannot be made liable to pay the penalty. Learned counsel for the assessee has placed reliance on the case of Kishori Lal Rakesh Kumar Mandi v. Commissioner of Sales Tax [1985] 59 STC 323 (All.); 1985 UPTC 211. A perusal of this case will go to show that in that case it was held that in clause (g) of section 15-A(1) clear omis....

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....g the course of the "assessment proceedings". It does not deal with the penalty proceedings. It cannot be said that the penalty proceedings and the assessment proceedings are one and the same thing. The penalty proceedings are entirely different from assessment proceedings. Therefore, the department cannot get any assistance from the provisions under section 12-A of the Sales Tax Act. In the present case the department has to place material on record to show that the assessee did not make purchases of mentha oil from the two persons out of II persons who were mentioned in vouchers at serial Nos. 43 to 53. Section 15-A(1)(d) is a charging section and its penalty is provided in clause (ii) of that section. Under clause (ii) a penalty ha....