9911796707
TMI Blog2011 (2) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... dated January 18, 2003 (annexure P2) passed by the Assistant Commissioner, Commercial Tax Division II, Indore, as also the order dated July 29, 2003 (annexure P4) passed in Revision No. 44 of 2003 by the Additional Commissioner, Commercial Tax, Indore. Brief facts of the case are that the petitioner-company dealing in various items also dealt in the edible oil for the relevant year April 1, 1999 to March 31, 2000. The petitioner had filed its quarterly returns in respect of the State sales tax as also the entry tax and had deposited the taxes on the basis of such returns. It is the case of the petitioner that its entire turnover of sales of all items including edible oil was duly and correctly disclosed in the return. However, on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 to March 31, 2000. On the basis of the aforesaid assessment order (annexure P1), proceedings under section 69 of the Act of 1994 for imposition of penalty was initiated against the petitioner. The said proceedings ended in the order of imposition of penalty on the petitioner to the extent of Rs. 51,98,280 (five times to the difference in tax). The said order of penalty dated January 18, 2003 (annexure P2) was assailed by the petitioner by filing a revision under section 62 of the Act of 1994 before the Additional Commissioner of Commercial Tax, Indore. The Additional Commissioner, by impugned order dated July 29, 2003 (annexure P4) dismissed the petitioner's revision and maintained the order of penalty passed by the Assistant Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner the mens rea of evasion of tax is apparent. The petitioner/assessee has wrongly mentioned the rate of tax to be two per cent instead of four per cent. In the circumstances the petitioner cannot be absolved from the liability of paying penalty as contemplated under section 69 of the Act of 1994. According to the respondents, the petitioner's contention that it had no knowledge of increase in tax with effect from May 1, 1999 till January 1, 2000 cannot be accepted. It is the case of the respondents that the petitioner-company though having knowledge about the increase in rate of tax has furnished false rate in its return and as such the penalty has rightly been imposed. Heard learned counsel for the parties and perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner we feel it necessary to extract section 69 of the Commercial Tax Act which reads thus: "69. Power of Commissioner or appellate or revisional authority to impose penalty in certain circumstances.-(1) If the Commissioner or the appellate or revisional authority, in the course of any proceedings under this Act is satisfied that a dealer has concealed his turnover or the aggregate amount of purchase prices in respect of any goods or has furnished false particulars of his sales or purchases, as the case may be, in his return or returns for any year or part thereof or has furnished a false return or returns for such period, the Commissioner or the appellate or the revisional authority as the case may be, may initiate proceeding separately fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return or returns was not due to any fraud or gross negligence on his part." On a plain reading of section 69 of the Act of 1994, it is clear that the imposition of penalty is attracted if the Commissioner or the appellate or the revisional authority is satisfied that the dealer has concealed his turnover or the aggregate amount of purchase prices in respect of any goods or has furnished false particulars of his sale or purchases, as the case may be, in his return or returns for any year or part thereof, or has furnished a false return or returns for such period. Thus, it has to be seen that whether the petitioner has concealed his turnover or has furnished false particulars of his sale or purchases in his return or has furnished a false ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of deliberateness in it. Where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to condemn the return as a "false" return inviting imposition of penalty. The concealment of turnover and furnishing of a false return, to fall within the ambit of this section must be accompanied with mens rea. If the assessee had a bona fide doubt whether the particular item is taxable or not and for the reason if he did not show the purchases in the return, it cannot be said that there was any mens rea. The expressions "concealment of turnover", "furnished false particulars of sales or purchase" and "furnished false returns" used in section 69(1) c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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