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Sunday 11 September 2011

Decision -Penalty U/s 76(6) the Rajasthan VAT Act, 2003


CTO Vs. Bansal Scrap Traders, Bikaner  (2002) 13 STT 235 (RTB) Held - That before levying penalty AA have not made any proper inquiry. DC(Appeal) has rightly mentioned that AA has not proved why documents were doubtful. All documents were true. Hence, appeal is liable t be rejected. 

In Re M/s Mahaveer Conductors Vs. ACTO (1994) 15 RTJS 107 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.

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 . 

ACTO Vs Katta Oil Mills (1996) 19 TW 1 (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.
           
ACTO Vs. M/s Abhay Rajiv Kumar, Alwar (2002) 11 STT 297 (RTB)
Held – Penalty imposed was not in accordance with law. No mens rea was proved. Appeal failed.
(2000) 120 STC 212 (Raj) ,
State of Rajasthan Vs. DP Metals 124 STC 611(S.C.)
Hindustan Steels Ltd. Vs. State of Orissa (1970) 25 STC 211 (S.C.) 
ACTO Vs. Kumawat Udhoy (1995) 97 STC 238 (Raj.)
CTO Vs. Birdhichand Bansidhar (1994) 93 STC 346) (Raj.)
CTO Vs. Rajdhani Wines (1992) 87 STC 362 (Raj.)


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.



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