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2015 (5) TMI 1052 - RAJASTHAN HIGH COURT

2015 (5) TMI 1052 - RAJASTHAN HIGH COURT - [2016] 87 VST 25 (Raj) - Levy of penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 - Whether the mens rea is required to be proved as a necessary ingredient for imposition of penalty - Held that:- As held by the Hon'ble Larger Bench of this Court, though mens rea is not essential but in the present case, the penalty is not leviable for the reason that it is an admitted fact that the assessee is not a dealer of telephone cables but is a manufacturer .....

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- Decided in favor of assessee. - SB Sales Tax Revision No.94/2003 - Dated:- 29-5-2015 - J.K. Ranka, JJ. Mr. Archit Bohra on behalf of Mr. RB Mathur, counsel for the petitioner Mr. Vivek Singhal, counsel for the respondent ORDER Instant sales tax revision petition is directed against order of the Tax Board dt.28/06/2002, it relates to penalty which was imposed upon the respondent-assessee under Section 78(5) of the Rajasthan Sales Tax Act, 1994. 2. It may be observed that a Larger Bench was cons .....

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, as well as M/s. Lalji Mulji Transport Company Vs. State of Rajasthan, 2002(3) RLR 255, as follows:- (i) Whether requirement of mens rea is relevant for the purpose of determining the liability for penalty in terms of Section 78 sub-section(5) of the 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 .....

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of Section 78 on proved violation of sub-section (2) of Section 78 of the Rajasthan Sales Tax Act, 1994? 3. The Larger Bench of this Court vide order dt.26/02/2015 passed in Sales Tax Revision Petition No.92/1999 (Assistant Commercial Taxes Officer Vs. M/s Indian Oil Corporation Ltd.) and other connected revision petitions has answered the questions 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 .....

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ot to adjudicate as to whether the mens rea was present in violation of sub-section (2) of Section 78, for imposing penalty under sub-section (5) of Section 78 of the 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. 4. After answering the questions in the case of Assistant Commercial Taxes Officer Vs. M/s Indian Oil Corpora .....

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nt and nowhere it was stated that the said item is being purchased for own use. Dissatisfied with the explanation offered, the Assessing Officer (for short, 'AO') imposed penalty of ₹ 32,505/- under Section 78(5) and on an appeal by the respondent-assessee before the Deputy Commissioner (Appeals) (for short, 'DC(A)'), the DC(A) accepted the contention of the assessee and deleted the penalty. The revenue preferred appeal before the Tax Board who also upheld the oder passed b .....

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d. counsel for the respondent-assessee contended that the telephone cables purchased were for own use to be used in the factory premises for diverse purposes and it was duly recorded in the registration certificate, which was granted by the Revenue Department. He contended that there was no necessity of carrying declaration form ST-18AA when the same has been purchased for its own use and contended that Rule 53(1)(b) is clear in this regard and accordingly contended that there is a concurrent fi .....

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but is a manufacturer of cement and the telephone cable of a value of ₹ 1,08,349.28 were purchased for its own use and for the use in factory for diverse purposes. In my view, there is a definite finding of fact by the appellate authorities which has not been controverted by counsel for the revenue. In this regard, Rule 53 of the Rajasthan Sales Tax Rules, 1995, which is relevant for the present purpose, is reproduced as under:- [53. Declaration required to be carried with the goods in mov .....

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ower; or (ii) who receives any goods as may be notified by the State Government consigned to him from outside the State; or (iii) who intends to bring, import or otherwise receives any goods from outside the State as may be notified by the State Government, of the value of ₹ 10,000/- or more for use, consumption, or disposal otherwise than by way of sale; shall furnish or cause to be furnished a declaration in form ST-18A. The counter foil of the declaration shall be retained by such deale .....

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