Bharat Petroleum Ltd. Vs. Assistant
Commercial Taxes officer, Udaipur (1999)
3 Sales Tax Today 7 – Though it is correct to say that provision of section 78
are mandatory and directory yet where during the inquiry the dealer head
furnished declaration in Form No. 18 A along with the reply to show cause
notice. Mens rea should have been try to
be established and this was not done in this matter. Penalty was set aside.
Chandak and Company Vs. Assistant
Commercial Taxes officer (Tax Board) (1998) TW 833, 1998 STN SA-90. – Documents
correct, no mens rea proved, 18 A produced on next day- no penalty is to be
levied.
In Re
(1994) 15 RTJS 107 M/s Mahaveer Conductors Vs. ACTO R-HC it was held
that the section 78 does not provide any presumption about existence of mens rea against the defaulter, the
burden of proving mens rea is on the department.
Steel Authority of India ltd. Vs. ACTO,
Jaipur (1999) 3 sales Tax Today 54 - held though Form ST 18-A is mandatory yet
before imposition of penalty mens rea of evasion of tax has to be proved.
It was held in Re: CTO, Bharatpur Vs. Hind Timber Sri Ganganagar
(1999) 4 Sales Tax Today 59 (RTB) that the department could not establish mens rea of evasion of tax and without
proving mens rea the penalty could
not be imposed only on the ground of the absence of Form 18A.
M/s Jitendra & Company Vs. State of
Rajasthan (1998) 1 Sales Tax Today 101 –
It was held that penalty under section 78 (5) is not automatic, but is
discretionary and where there is no mens rea of evading tax penalty cannot be
imposed without considering the mitigating facts .
16 RTJS 127 Assistant Commercial Taxes
officer Vs. Yashwant & Co.
6 RTJS 61 Bundi Transport – Negligence
of the transporter to carry the documents.
(1999) 3 Sales
Tax Today 14 Surya Roadways, Ahmedabad Vs Assistant Commercial Taxes officer Ajmer:
Goods were being transported from Delhi
to Ahmedabad. The vehicle was intercepted in Rajasthan and checked. On inquiry
it appeared that the consignor firm at Delhi was bogus. Assistant Commercial
Taxes officer presumed that goods were being consigned from Rajasthan & to
avoid tax. The consignment was being shown in the name of a firm of Delhi, so
he imposed penalty U/S 78(5)-whether only on the ground that the firm at Delhi
was bogus. It could not be presumed that goods were being consigned from
Rajasthan. Held-No. Before imposing penalty U/S 78(5) it was necessary to prove
that goods were actually being consigned from Rajasthan.
(1999) 2 Sales
Tax Today 68 M/s Singhal Carriers Co.
Vs. Assistant Commercial Taxes officer: Goods in transit
were intercepted and checked. A penalty u/s 78(5) was imposed. There was
nothing on record to rebut the proposition that the goods in question were in
transit from one State to another through Rajasthan – Whether in the facts and
circumstances Assistant Commercial Taxes officer had any jurisdiction to impose
penalty u/s 78(5) – held - No.
Ratio in (1998) 108 STC 490 (RTT) was
followed.
(1999) 4 Sales
Tax Today 220 M/s Mahendra & Co. Vs. Assistant Commercial Taxes officer,
Anti Evasion Sirohi (RTB):
Section 22A(7), RST Act, 1954 – Goods
accompanied by all other documents except Form ST-18A. Revenue could not prove
mens rea – whether penalty could be imposed. Held – No.
Sundram Roadways,
New Delhi Vs. State of Rajasthan & others (1998) Sales Tax Today 88:
Transporter carrying goods from
Ghaziabad to Mumbai – whether imposition of penalty u/s 22A(7) was proper –
held – No – when goods emanating from out side Rajasthan and dispatched to
another point outside Rajasthan. Transit
through the States territory Section 22 A RST Act does not come into play and
all that the sales tax authorities of Rajasthan can do is to ensure that they
in fact do leave the State.
Assistant
Commercial Taxes officer, Chittorgarh Vs. Hira Lal, Udaipur (1998) Sales Tax
Today 27:
Goods in transit not accompanied by
declaration Form ST18A. Declaration Form produced on the same day – whether the
declaration is ante dated? Held-No. Whether intention is to evade tax? Held-No,
penalty cannot be imposed.
A.C.T.O.
Hanumangarh Vs. M/s Ganesh Electrical, Sri Ganganagar & A.C.T.O.
Hanumangarh Vs. National Electronics, Sri Ganganagar:
Goods in transit accompanied by all
documents except declaration in Form 18A – Notice to furnish the declaration
given – declaration submitted before expiry of the period specified in the
notice – whether the declaration can be said to be an after thoughts? Held –
No, penalty cannot be imposed u/s 22A(7)
(1995) 18 TBR 214
Assistant Commercial Taxes officer Vs. Shree Balaji Driver-RTB:
Production of Form ST 18A before Deputy
Commissioner before decision on Appeal is sufficient compliance, penalty set
aside.
(1996) 19 TW 1
ACTO Vs Katta Oil Mills (RTT):
At the time of checking truck driver
could not produce the documents in respect of tanker containing mustard oil.
Suspecting evasion ACTO seized the goods. The dealer appeared and produced the
documents. ACTO rejected the documents and imposed penalty. Tribunal held that
Assessing Authority has not given single reason to how documents are not
reliable. He has made no inquiry worth the name regarding the documents.
Penalty quashed.
(1994) 15 RTJS
327 ACTO Vs. Rathi Steel Traders:
So far as issuance of notice for
imposition of penalty u/s 78(5) is concerned, when the identity of the owner of
goods is established, the notice of opportunity of hearing is ought to be given
to the owner.
(1997) TW 591
ACTO Vs. Mohan Chand Mittal (RTB):
Penalty u/s 22A(7) could not be imposed
simply for suspicion of tax evasion due to deviation of route.
(1999) 3 Sales
Tax Today 26 M/s Voltas ltd. Vs. ACTO:
Though the honorable tribunal had held
that declaration Form ST-18A is mandatory all the same it has also been held
that before imposing penalty u/s 78 the mens rea of evading tax has also to be
proved.
(1999) 3 Sales
Tax Today 35 ACTO Vs. M/s Kisan Trading Co.:
The imposition of penalty u/s 22A(7)
only on ground of non-availability of declaration is not proper.
(1999) 22 TW 108
Indian Oil Corporation Vs. ACTO (RTB):
Non furnishing of declaration form
ST-18A at the check post in a case of transfer of goods from one branch to
another, on the ground it remained with the transporter by an oversight does
not attract penalty u/s 22A(7) of the old Act.