TMI Blog1995 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... he State by the respective firms. It is said, M/s. National Jute Corporation imported goods valuing Rs. 1,06,896/- from Delhi. However, by an inadvertent mistake the Delhi transporter filled in the blank Form 31 belonging to M/s. Singh Traders for the transportation of goods of M/s. National Jute Corporation instead of utilising the correct Form 31 given by M/s. National Jute Corporation for that purpose. It is not in dispute that when the mistake was detected, the assessee immediately informed the Sales Tax Department about the same. At this stage penalty notices were issued, both to the assessee as well as to the National Jute Corporation. The latter was penalised under Clause (m) while the former (assessee) under Clause (h) of sub-section (1) of Section 15A of the Act. 3.Both the firms appealed to the Assistant Commissioner (Judicial), Sales Tax, the first appellate authority against their respective penalty orders. Penalty in the case of National Jute Corporation was let off on the ground that Form 31 of another firm came to be utilised due to human error. However in the case of assessee, though the quantum of penalty was reduced from Rs. 5,000/- to Rs. 3,000/- but the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer or person shall pay, by way of penalty, in addition to the tax, if any, payable by him, - ............ in a case referred to in Clause (h) a sum not exceeding rupees five thousand; and" 7.From the above it is apparent that Clause (h) of Section 15A(1) of the Act contemplates two situations to bring a case within its mischief, namely, making a false verification or declaration on (i) an application for registration or (ii) an application in connection with any proceedings under the Act. On either of the two conditions obtaining in a given case and the assessing authority being satisfied that a case for penalty has been made out, he has been empowered to direct the imposition of penalty. Now in order to determine whether a case for the imposition of penalty existed or not, the matter is left to the discretion of the assessing authority. The exercise of that discretion is to be governed by reason and justice and according to law based on judicial considerations. It is to be exercised objectively with reference to the facts and circumstances of each case. In other words, the penalty is not automatic and may not necessarily be imposed in every given case irrespective of oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a verification clause which reads :- "I do hereby declare that the above information is correct and complete to the best of my knowledge and belief." 11.Now sub-rule (6) of Rule 85 of the aforesaid Rules contemplates that the registered dealer shall send the original and duplicate portion of the form to the selling dealer or the consignor of the other State after filling in all the required particulars and signing it. He shall retain the counterfoil himself. It seems, the Tribunal had this provision in mind, though not referred to by it, when it held that the law enjoins that fully filled in forms bearing complete details should be given to the transporters. It is in this context the Tribunal held that the declaration given on Form 31 by the assessee was subsequently found to be false. Perhaps as the name of the importing dealer was incorrectly stated in that declaration. 12.There is no dispute between the parties as already stated both, the assessee as well as the National Jute Corporation had handed over their respective Form 31 in blank to a common transporter at Delhi. It is obvious that the disputed Form 31 had not been filled up with details when the signatures of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. On revision at the instance of the Commissioner of Sales Tax, this Court upheld the order of the Tribunal. It was held that the assessee in that case had no guilty intention in concealing the existence of the godown and had made a mistake in the application for registration by not mentioning it. This Court observed :- "In view of the finding of the Tribunal that there was no intention to mislead the department and there was a bona fide mistake on the part of the assessee, the revision cannot succeed. Mere non-mentioning of the godown will not attract a penalty unless there is in existence some other circumstances indicating on the part of the assessee an intention to evade the law." 15.The above decision clearly rules that in order to sustain a penalty under Section 15A(1)(h) there must be guilty mind or an element of mens rea and a mere default simpliciter may not be sufficient to attract the penalty under those provisions. In other words, the mere failure to carry out a statutory obligation need not necessarily visit the consequence of imposition of penalty. Something more must be shown and that is whether there is dishonest conduct on the part of the defaulter. Where an o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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