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Assistant Commercial Taxes Officer, Flying Squad, Bharatpur Versus Harsahay Dwarka Prasad Agarwal Chomu

2015 (6) TMI 1009 - RAJASTHAN HIGH COURT

Leviability of penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 - Whether mens rea is required to be proved - Mandatory declaration form ST-18C not produced at the time of inspection - Held that:- the declaration form, which was obtained by the assessee, was available with them, and which was produced immediately on demand, and even on the same day of intercepting the vehicle. Also he appeared before the authorized officer himself on the same day and produced declaration form ST- .....

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nity should be given and therefore, it is a clear cut case where the declaration form, though mandatory, required to be carried with the vehicle but the driver/vehicle incharge forgot to carry the same, which was immediately produced on demand that too on same day.

Therefore, in the light of judgment rendered by Honourable Apex Court in the case of Guljag Industries v. Commercial Taxes Officer [2007 (8) TMI 344 - SUPREME Court] and Larger Bench of this court in Assistant Commercial Ta .....

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order dated January 14, 2005 passed by the Rajasthan Tax Board, Ajmer in Appeal No. 822/2004/Jaipur whereby the appeal filed by the Revenue has been dismissed. It may be observed that a Larger Bench was constituted by honourable the Chief Justice to resolve and decide the following questions framed after noticing a conflict of opinions in the Division Bench judgments of this court in Parashwanath Granite India Ltd. v. State of Rajasthan (D. B. Civil Writ Petition No. 4250 of 1998) [2006] 144 ST .....

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Rajasthan Sales Tax Act, 1994 ? (ii) Whether the mens rea is required to be proved as a necessary ingredient for imposition of penalty under sub-section (5) of section 78 on proven violation of sub-section (2) of section 78 of the Rajasthan Sales Tax Act, 1994 ? (iii) Whether in view of the amendment to rule 55 of the Rajasthan Sales Tax Rules, 1995 pursuant to the decision of the honourable Supreme Court in the case of State of Rajasthan v. D. P. Metals [2001] 124 STC 611 (SC), on sufficient ca .....

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t Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB]) and other connected revision petitions has answered the questions as follows (pages 223 and 224 in 82 VST): "(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 .....

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he RST Act, 1994. (iv) 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." After answering the questions in the case of Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB] and other connected sales tax revisions, were ordered to be sent back and listed before the Bench having jurisdiction to decid .....

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ne 22, 1999 was found with the vehicle and the sale invoice was also noticed. However, at the time of inspection, declaration form ST-18C, which was mandatory, was not produced, and prima facie the assessing officer was of the view that penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 (for short, "the RST Act") is leviable and therefore, a show-cause notice was issued for hearing on July 8, 1999. However, the representative of the assesse appeared on the spot on June 23 .....

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lty under section 78(5) of the RST Act. The matter was challenged in appeal before the Deputy Commissioner (Appeals), who allowed the same in the light of the judgment rendered in the case of State of Rajasthan v. D. P. Metals [2001] 124 STC 611 (SC); [2002] 1 SCC 279. The Revenue carried the matter before the Tax Board, who upheld the order of the DC (A) and deleted the penalty. Counsel for the Revenue contended that carrying of the declaration form ST-18C was mandatory, and it ought to have be .....

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further contended that in the light of the judgment rendered by the honourable apex court in the case of Guljag Industries v. Commercial Taxes Officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269 and Larger Bench of this Court in Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB] mens rea is not essential and once the clear-cut finding by the assessing officer that the goods were being transmitted with the intention of evasion of tax, .....

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at the declaration form was obtained subsequent to the dispatch of the goods or after being intercepted by the authorized officer of the Revenue, and admittedly the vehicle was checked on June 23, 1999 on an information giving by the vehicle incharge to the assessee, he appeared before the authorized officer himself on the same day, i.e., June 23, 1999 and produced declaration form ST-18C, therefore, once it is a finding of fact given by the assessing officer that the declaration form was produc .....

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