TMI Blog1973 (8) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax Officer proposing to take action under section 10A of the Act. Annexure B is the assessee's objections. The main contentions were that the use of the goods for distribution of electricity is permitted under section 8(3)(b), that goods were used only when they were not otherwise available and that, therefore, there was no mens rea, and there was "reasonable excuse" for the use. Overruling the objections, the Sales Tax Officer imposed a penalty of Rs. 1,193.88. Annexure C is the order of the Sales Tax Officer and therein it is said: "This sort of offence had been committed by the assessee in all the prior years, and penalty had been imposed for all these cases. The same offence is being repeated during the year." 2.. The Sales Tax Officer put the offence both under section 10(b) and (d) of the Act. The assessee appealed. The Appellate Assistant Commissioner also negatived the arguments based on mens rea and reasonable excuse. He said: "It is further argued by the appellant's learned representative that there was no deliberate motive in using the goods for works contract and the same were used only when there was any necessity. From the facts and in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ", we are of the view that the assessee had violated the provisions of section 10(d) with full knowledge of such violation and without reasonable excuse. 6.. The learned counsel for the assessee invited our attention to the decision of the Supreme Court in State of Madras v. Radio Electricals Ltd.[1966] 18 S.T.C. 222 (S.C.). and particularly to a passage occurring at page 232, which is as follows: "But it is not for the Tax Officer to hold an enquiry whether the goods specified in the certificate of registration of the purchaser can be used by him for any of the purposes mentioned by him in form C, or that the goods purchased have in fact not been used for the purpose declared in the certificate." 7.. The question raised in that case was as to whether the taxing authorities could go behind the statements in the certificate of registration of the purchasing dealer and the C forms issued by him to deny the concessional rate of tax to the selling dealer. This is clear from the following passages occurring at pages 232 and 233 of the report: "If therefore goods are specified in the certificate of registration in form B, it is not open, when a claim is made in respect of the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cited at the Bar in support of the assessee's case is another decision of the Mysore High Court in State of Mysore v. S.S. Umandi[1969] 24 S.T.C. 11. That decision besides laying down that the only three ingredients which constitute the offence under section 10(d) are those stated in the earlier decision of that High Court further holds that mens rea is not one of the ingredients. This decision also is of no assistance to the assessee. We may, however, point out that this court has taken a different view and held that mens rea is also a necessary ingredient of the offence under section 10(d) of the Act in two Division Bench decisions, viz., O.P. No. 2702 of 1969 and W.A. No. 29 of 1971. 10.. The learned counsel for the assessee next contended that under section 10A of the Act only one-and-a-half times the concessional rate of tax is imposable as penalty. The argument is based on the language of the section: "10A. (1) If any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under this Act may, after givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) it is failure to use the goods for any of the purposes specified in section 8(3)(b). A purchasing dealer need pay under section 8(1) tax only at a "concessional" rate of 3 per cent provided (a) he is a registered dealer and (b) the goods purchased are of the class or classes specified in his registration certificate as intended for all or any one of the purposes mentioned in section 8(3)(b). To obtain the benefit of "concessional" rate of tax, a purchasing dealer has also to furnish under section 8(4)(a) read with rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957, a declaration in form C. If he does not satisfy either of the conditions (a) or (b), mentioned above, tax payable by him is to be calculated at the rates provided in section 8(2), which we will call "nonconcessional rates". In respect of declared goods this rate is the rate applicable to intra-State sales of those goods, and in respect of nondeclared goods it is 10 per cent. Sections 10(b), (c) and (d) are aimed to meet evasion of payment of "non-concessional rate" of tax by one, who is not entitled to the benefit of "concessional rate" of tax. Section 10A, therefore, provides for penalising a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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