9911796707
TMI Blog1980 (1) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The Assistant Commissioner (Assessment), Special Circle, Ernakulam, found that the petitioner had purchased bottle coolers for Rs. 1,61,767.40 by issuing C forms during the years 1970-71 and 1971-72. As the registration certificate did not include bottle coolers, the Assistant Commissioner thought that the issue of C forms declaring that bottle coolers were covered by the registration certificate constituted Prima facie a violation of section 10(b) of the Central Act. He, therefore, issued a notice (exhibit E) to the petitioner to show cause why penalty of 1 times the tax at 15 per cent due on the purchase of bottle coolers should not be imposed upon them under section 10A. To this the petitioner filed a lengthy reply contending that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate of registration may instead of prosecuting him impose the prescribed penalty. The competency of the Assistant Commissioner and the extent of the penalty levied by him were not contested before us; nor was it disputed that bottle coolers were not covered by the petitioner's certificate of registration or that the petitioner purchased them by issuing C forms. The arguments before us were principally devoted to establish that the petitioner had no mens rea which is necessary and which is implicit in the expression "falsely represents" in section 10 and they could not therefore be penalised. That then is the only question that falls to be decided. 3. Counsel quoted a long line of cases to support his contention that the words "falsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and there is no reasonable explanation forthcoming from the assessee for such want of care, the court may, in a given case, infer deliberateness and the return may be liable to be branded as a false return. But 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." 4.. After quoting an earlier decision, Hindustan Steel Limited v. State of Orissa[1970] 25 S.T.C. 211 (S.C.)., in support of the above position, the Supreme Court continued: "It is elementary that section 43 of the Madhya Pradesh General Sales Tax Act, 1958, providing for imposition of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was purchasing under them were covered by the certificate of registration. This representation was patently a false representation. The petitioner's explanation that they bona fide believed that the registration certificate was comprehensive enough to include all categories and classes of goods relating to their business and that the sale and purchase of bottle coolers was part of their business can afford no valid defence. Whether sale and purchase of bottle coolers was part of the petitioner's business or not -it is irrelevant to the question-there is no basis in the plea of bona fide belief that the certificate of registration which contained only three brands of cool drinks was comprehensive enough to include everything in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "tea-chests, machinery, drugs, etc." were mentioned. The C form issued by the assessee included blankets, paints, tiles, clocks and brushes. A Bench of the Madras High Court set aside the order of penalty in the view that reading the language of the certificate in the light of that employed in the application for certificate, the word "etc." in the certificate could possibly have raised the belief in the assessee that the word covered the items mentioned in the C form and that the assessee could have formed the belief and quite honestly that "etc." would cover those articles. It was also held that the assessee was in this situation entitled to the benefit of doubt. In Sri Lakshmi Machine Works v. State of Madras[1973] 32 S.T.C. 407., the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been included in the certificate of registration as it was intimately and essentially connected with the manufacturing process carried on in the laboratory of the assessee. The Tribunal did not however enter any finding on the assessee's contention that they acted bona fide in the belief that the Otis lift was covered by the registration certificate. The High Court held that as the assessee bona fide thought that the Otis lift was included within category (b) or category (c) and as neither the assessing officer nor the Appellate Assistant Commissioner had given any finding that the assessee did not or could not have entertained any bona fide doubt and, therefore, the offence under section 10(b) had been committed, the imposition of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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