9911796707
TMI Blog1996 (5) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... he business of purchase and sale of scientific goods, apparatus and electrical goods, etc. In the assessment year 1983-84 he submitted the return and also produced the account books duly maintained by him in the ordinary course of business. The assessing authority accepted the account books and also the return and assessed the tax accordingly on August 25, 1987. The assessing authority noticed that some of the purchases recorded in the account books and imported from outside U.P. were made without submitting form No. 31. The tax assessed for the assessment year 1983-84 was duly paid by the assessee. But later on in September, 1987 the assessing authority initiated the proceedings for imposition of penalty for the violation of section 28-A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tently not furnished. According to him the omission was merely due to negligence on the part of the assessee and nothing more. In support of his contention he has cited the decision of the Division Bench of this Court in the case of Jain Shudh Vanaspati Ltd. v. State of U.P. [1983] 53 STC 54; 1983 UPTC 198 and subsequent decision of single Judge of this Court in the cases of Bharat Ply-wood Products Pvt. Ltd. v. Commissioner of Sales Tax [1990] 79 STC 400; 1989 UPTC 1097 and Jamco Shoe Factory, Agra v. Commissioner of Sales Tax 1995 UPTC 295. 6.. In reply Mr. R.D. Gupta, learned Standing Counsel cited [1989] 177 ITR 455 (SC); 1989 UPTC 990 (Gujarat Travancore Agency v. Commissioner of Income-tax, Kerala), [1992] 193 ITR 713 (SC); 1992 UPTC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Those in charge of the affairs of the company in failing to register the company as a dealer acted in the hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P. (1996) 2 JT 79 (SC) relates to violation of the Foreign Exchange Regulation Act. The honourable Supreme Court held that the proceedings under the Act are adjudicatory in nature, the question of the element of mens rea does not arise. 12.. In my opinion, these decisions under the Acts different from the Sales Tax Act cannot be relied upon when the honourable Supreme Court in the case of Hindustan Steel Ltd. [1970] 25 STC 211; [1972] 83 ITR 26 has clearly held after analysing the provisions of the Orissa Sales Tax Act that the failure to register company as a dealer was merely a technical omission and nothing more and it does not warrant imposition of penalty. This Court has followed this decision of the honourable Supreme Court con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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