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M/s Ganga Jamuna Chemicals Versus Commercial Tax Officer, Anti Evasion, Jodhpur

2015 (12) TMI 716 - RAJASTHAN HIGH COURT

Imposition of penalty under Section 78 (5) - mens rea - Held that:- there is no requirement in law for Revenue to establish mens rea on the part of assessee in these penalty proceedings under Section 78 (5) of the Act - Present case is covered by the decision of this Court in various similar cases and one of such order passed in Assistant Comercial Taxes Officer, Ward-II, Circle-D, Jodhpur Vs. M/s.Nahar Granite P. Ltd., Jodhpur [2015 (11) TMI 1141 - RAJASTHAN HIGH COURT] - Petition disposed of. .....

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Commissioner (Appeals) dated 12.11.2010. 2. Both the learned counsels at the Bar submit that the present case is covered by the decision of this Court in various similar cases and one of such order dated 25.05.2015 passed in S.B. Civil (Sales-Tax) Revision Petition No.57/2008 - Assistant Comercial Taxes Officer, Ward-II, Circle-D, Jodhpur Vs. M/s.Nahar Granite P. Ltd., Jodhpur, has been produced before this Court. The relevant portion of the said order dated 25.05.2015 is quoted hereinbelow:- & .....

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/1999 along connection revisions, decided on 26.02.2015) reported in MANU/RH/0327/2015 , in which the Full Bench, headed by Hon'ble the Acting Chief Justice, held as under:- "34. The suspicion or doubt on the documents to be false or forged, per se, does not attract levy of penalty under sub-section (5) of Section 78 of the RST Act, 1994. In such case, an opportunity is to be given under Rule 55 (1) of the RST Rules, 1995, to a person, to produce the required documents and/or declaratio .....

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s of checking the evasion of tax. It is thus not correct to submit that penalty for submission of false or forged document or declaration, necessarily involves adjudication, for which mens rea is relevant, and is a necessary ingredient. Any doubts in this regard have been clarified by the Hon'ble Supreme Court in Guljag Industries v. Commercial Taxes Officer (supra), in which it has been clearly held in para 30, after quoting the provisions of Section 78, that; "In the present case also .....

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are as follows: - (i) The requirement of mens rea is not relevant for the purpose of determining the liability for penalty, in terms of Section 78 (5) of the RST Act, 1994. (ii)The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of section 78, on proving violation of sub-section (2) of Section 78 of the RST Act, 1994. (iii)The amendment of Rule 55 of the RST Rules, 1995, in pursuance to the decision of the Hon'ble Supreme Court i .....

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