TaxTMI 
TaxTMI 
TaxTMI 
2016 (4) TMI 4
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....39, decided on November 29, 2004, as well as Lalji Mulji Transport Company v. State of Rajasthan [2002] 127 STC 365 (Raj); [2002] 3 RLR 255, as follows: "(i) Whether requirement of mens rea is relevant for the purpose of determining the liability for penalty in terms of section 78, sub-section (5) of the Rajasthan Sales Tax Act, 1994 ? (ii) Whether the mens rea is required to be proved as a necessary ingredient for imposition of penalty under sub-section (5) of section 78 on proven violation of sub-section (2) of section 78 of the Rajasthan Sales Tax Act, 1994 ? (iii) Whether in view of the amendment to rule 55 of the Rajasthan Sales Tax Rules, 1995 pursuant to the decision of the honourable Supreme Court in the case of State of Rajasthan v. D. P. Metals [2001] 124 STC 611 (SC), on sufficient cause being shown whether any authority empowered would be justified in not imposing the penalty in the absence of mens rea being proved ? (iv) Whether the mens rea is required to be proved as a necessary ingredient for imposing of penalty under sub-section (5) of section 78 on proved violation of sub-section (2) of section 78 of the Rajasthan Sales Tax Act, 1994 ?" 3. The Larger Benc....
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....y blank and since there was apparent violation of section 78(5) read with rule 53, a show-cause notice was issued. The representative of the respondent-assessee appeared along with counsel and pleaded that the goods were under stock transfer and thus, there was no liability to tax and pleaded that the form could not be filled in, on account of the mistake and it being a technical mistake, no penalty was to be levied. However, the assessing officer (for short, "the AO") was dissatisfied with the explanation so offered and imposed penalty by holding that the declaration form ST- 18A duly filled in was the prime necessity under the Act. 6. The respondent-assessee preferred appeal before the Deputy Commissioner (Appeals) (for short, "the DC (A)") before whom it was claimed that all supporting evidences led clearly proved that the documents were found to be proper and merely because the declaration form ST-18A was blank, it does not lead to evasion of tax and the DC (A) accepted the contention of the assessee and deleted the penalty. 7. The petitioner-Revenue carried the matter in appeal before the Tax Board who also upheld the order of the DC (A) primarily on the basis that mens rea ....
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....s, then merely because the declaration form ST-18A was not filled in, does not make any difference. He further contended that this court, after considering the judgment in the case of Guljag Industries v. Commercial Taxes Officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269 and also State of Rajasthan v. D. P. Metals reported in [2001] 124 STC 611 (SC); [2002] 1 SCC 279, has remitted the matters back to the AO to grant an opportunity of removal of defects/deficiency and in this regard relied upon the judgments rendered in the case of CTO v. Jain Tube & ACTO v. L. G Electronics (I) Ltd. [2011] 30 Tax Update 125 (Raj), CTO v. Hindustan Petroleum Corporation Ltd. [2011] 30 Tax Update 251 (Raj), ACTO v. Hariom Company [2011]30 Tax Update 285 (Raj) and Assistant Commercial Tax Officer v. Indian Oil Corporation Ltd. [2014] 73 VST 425 (Raj), STR No. 82 of 2011, decided on May 16, 2013. He further contended that the Larger Bench of this court in the case of Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB] has merely held that mens rea is not essential in such cases and prayed that the order of the two appellate authorities was....
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.... to bring, import or otherwise receives any goods from outside the State, as may be notified by the State Government, of the value of Rs. 10,000 or more for use, consumption or disposal otherwise than by way of sale; shall furnish or cause to be furnished a declaration in form ST 18A (completely filled in all respect in ink). The counterfoil of the declaration shall be retained by such dealer and its portions marked 'original' and 'duplicate' shall be carried with the goods in movement. (b) Any dealer or person other than a registered dealer,- (i) who imports any taxable goods as may be notified by the State Government; or (ii) who receives any goods as may be notified by the Sate Government, consigned to him from outside the State; or (iii) who intends to bring, import or otherwise receives any goods from outside the State, as may be notified by the Sate Government, of the value of Rs. 10,000 or more, for use, consumption or disposal within the State; shall furnish or cause to be furnished a declaration in form ST 18AA (completely filled in all respect in ink). The counterfoil of the declaration shall be retained by such dealer or person and its porti....
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....ired to be carried, which in the instant case was duly signed by the authorized signatories of the respondent but for the reasons best known to it, all other particulars were admittedly left blank. The mandate of law and requirement is to be fulfilled. After considering the various judgments, the honourable apex court in the case of Guljag Industries v. Commercial Taxes Officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269, observed as under (pages 33 and 34 in 9 VST): "In our view, the aforestated judgment in the case of D. P. Metals [2001] 124 STC 611 (SC); [2002] 1 SCC 279 has no application to the present case. We are not concerned in the present case with false or forged documents/declaration. In the present case the goods in movement were carried with the blank declaration form 18A/18C which was duly signed by the assessee. Therefore, as stated above, we hold that the goods in movement were carried without the declaration form 18A/18C. Therefore, section 78(2)(a) stood attracted. Moreover, in the present case, there were no special circumstances indicated by the assessee as to why the forms which were duly signed were not filled in. Therefore, in our view t....
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....d document and/or declaration forms complete in all respects when the goods enters or leaves the nearest check-post of the State. Sub-rule (2) of rule 55 requires that verification or enquiry shall be completed within seven days from the date of issue of the direction, and for action, if any, warranted in the circumstances of the case, in pursuance to the direction given under sub-clause (a) of clause (4) of section 78 of the RST Act, 1994, which provides that where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section (2), or documents produced appear false or forged, the incharge of the check-post or the officer empowered under sub-section (3), may direct the driver or the person incharge of the vehicle or carrier or of the goods not to part with the goods in any manner including by retransporting or rebooking, till a verification is done or an enquiry is made, which shall not take more than seven days. 34. The suspicion or doubt on the documents to be false or forged, per se, does not attract levy of penalty under sub-section (5) of section 78 of the RST Act, 1994. In such case, an opportunity i....
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....eficiency/discrepancy which remained in the declaration form ST-18A. In my view, when an opportunity was already granted, second opportunity, in the facts and circumstances of the case and that too after fifteen years, is not required to be given. 18. I have gone through the judgments rendered by this court in the case of CTO v. Jain Tube [2011] 30 Tax Update 125 (Raj) and other judgments relied upon by counsel for the assessee which have restored the matter back to the AO but in my view, in the light of the judgment rendered by the Larger Bench of this court in the case of Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB], which is binding and for the reason in earlier paras, I am not persuaded with the arguments advanced by counsel for the respondent-assessee to allow fresh opportunity. 19. The judgments relied upon by counsel for the respondent-assessee in the case of Arihant Builders, Developers and Investors Pvt. Ltd. v. Incometax Appellate Tribunal [2005] 277 ITR 239 (MP), Essar Shipping Ports & Logistics Limited v. Commercial Tax Officer (FAC), Chennai [2010] 30 VST 366 (Mad) and Union of India v. Kaumudini Narayan Dalal [2001] ....