TMI Blog2005 (11) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same date in favour of the same party, of the same amount and same quantity of wheat was also found. On the said bill, which is produced as annexure 1 with the revision petition, the bill No. 940 was handwritten. The bilty of the transport was also found along with the goods. A case under section 78(5) of the Act was made out against the respondent-assessee on the ground that in view of two bills for the same goods having been found, there was an intention to evade the tax under the Act and, therefore, the respondent-assessee was liable to pay the penalty at 30 per cent of the value of the goods of Rs. 23,618. The assessee in pursuance of the notice under section 78(5) of the Act filed a reply thereto vide annexure 2 dated November 21, 2001 in which the accountant (Munim) of the said firm appeared before the assessing authority and explained that by mistake two bills bearing Nos. 940 and 943 of the same amount of Rs. 78,725 for 100 bags of wheat have been issued and he produced before the said authority the regular bill book and letter pad. Admitting the said mistake of making two bills, a request was made to the assessing authority to decide the case on the same day. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute in the present case that bill and bilty relating to the goods, namely 100 bags of wheat, were found with the truck in question and the same were produced at the time of checking. No other declaration was either required or produced and the entire case of the Revenue is that since a second bill bearing No. 940 in hand writing was also found, it gave rise to an intention to evade tax on the part of assessee and, therefore, penalty under section 78(5) of the Act was justified. First of all, a perusal of both these bill Nos. 943 and 940 clearly shows that the goods in question are shown to be sales tax paid and mandi tax paid (STP and MTP). No inquiry appears to have been made by the assessing authority into this question. First of all, whether the taxable sale attracting tax liability under the Act was at all made or not and whether that the goods in question were liable to tax first of all or not. Secondly, the assessing authority has totally failed to appreciate the averments made in reply to the notice, annexure 3, on record dated November 23, 2001 and taking the mistake of issuing two bills, one bearing No. 943 and another bearing No. 940 as admission of guilt of eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority is a penalty and not a tax which is imposed by virtue of charging provisions of a taxing enactment read with relevant notification of rate of tax. In imposition of penalty, the existence of guilty animus is essential and in arriving at the finding of the same, holding of enquiry by the assessing officer is a sine qua non. On the aforesaid facts, the appellate authorities particularly, the learned Deputy Commissioner (Appeals) who also appears to have gone into the record of the case in detail, found that the issuance of a second bill bearing handwritten No. 940 was a clerical and inadvertent mistake and since a regular bill bearing printed No. 943 along with the bilty for the same goods was also found with the same goods, the requirements of section 78(2) of the Act were satisfied and, therefore, no penalty under section 78(5) of the Act could be imposed. Agreeing with the said decision of the learned Deputy Commissioner (Appeals), the Tax Board also came to the similar conclusion. This court is of the clear opinion that no case of imposition of penalty under section 78(5) of the Act was made out in the present case and it is essentially a finding of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that contributes even to the burden of this court. The expenditure incurred by petitioner-department itself in dealing with such cases within small stakes besides the loss of productive man hours at various level and mechanical sanctions issued for filing revision petitions without really applying mind as to the genuine questions of law arising, is also a cause of concern and it would be only in the fitness of things if the Commercial Taxes Department considers it with all seriousness to frame the guidelines in this regard also so that respective appeals or revisions involving small stakes do not unnecessarily burden the dockets of this court. The sanction order for filing revision petitions at the instance of Revenue, showing application of mind by the competent authority should be filed with the memo of revision petition in this court. For the present, this court only considers it expedient to leave it to the best discretion of the department to frame the guidelines in this regard, for deciding the cut-off of stakes involved for deciding whether revision petition should be filed in this court or not. No such guidelines appear to have been framed as yet, though the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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