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TMI Blog1985 (7) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... "the assessee"), in the course of its business sells liquor to its customers. The assessee is registered as a dealer under the Act and the Central Sales Tax Act, 1956. While making an assessment of the turnover of the assessee for the assessment year 1969-70, the assessing authority found that the assessee had not paid tax on sale of imported liquor. A notice was issued by the assessing authority on January 4, 1974, to the assessee to show cause why penalty be not imposed to the extent of Rs. 21,078.50 upon the assessee under section 16(1)(i) of the Act, as according to the assessing authority the assessee had fraudulently evaded payment of tax on imported liquor. The case of the assessee was that although the assessee was allotted licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted only as handling or importing agent on behalf of the assessee. It was, therefore, held that the assessee had failed to make payment of tax about its turnover of imported foreign liquor and as such the imposition of penalty was justified under section 16(1)(i) of the Act. The assessee filed a revision petition before the Board of Revenue. The Division Bench of the Board of Revenue by its order dated December 21, 1978, held that even though the tax might have been paid at a wrong point, yet the goods which were tax paid could not be taxed again and that in the circumstances that sales tax was already charged when the goods were sold to the assessee, it could not be held that there was any fraudulent avoidance or omission in the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which the penalty was imposed was set aside by the appellate authority. Learned counsel appearing for the department is not in a position to say before us as to whether the order passed by the appellate authority has been subject-matter of a revision petition preferred before the Board of Revenue or that the same has been reversed or interfered with by any higher authority. Be that as it may. We have heard learned counsel for the parties on merits. The department desires that a reference may be called for in respect of the following three questions: "1. Whether on the facts and circumstances of the case the turnover of foreign liquor was not liable to tax because of its being tax borne in the hands of M/s. United General Stores? 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or liable to be collected on subsequent sales made by the assessee to the purchasers. The question as to whether evasion or avoidance in the payment of tax was fraudulent or not, it may be observed, is essentially a question of fact. In Commissioner of Income-tax, West Bengal-I v. Anwar Ali [1970] 76 ITR 696 (SC) the questions related to imposition of penalty under section 28(1)(c) of the Indian Income-tax Act, 1922, for concealing income and deliberately furnishing inaccurate particulars of such income. It was held by their Lordships of the Supreme Court in the aforesaid case that penalty could be imposed under section 28(1)(c) only when there was cogent material or evidence from which it could be inferred that the assessee had concealed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that although the Tribunal found that there might be certain doubtful transactions, it could not be held that the assessee had made a deliberate attempt of concealment and further that though there might be justification for making additions in the original assessment order to the amount shown in the return, those additions by themselves could not lead to the conclusion that the assessee had concealed its income or that it had furnished deliberately incorrect particulars. It was also observed that where after a full and material consideration of the circumstances appearing on the record the Appellate Tribunal had set aside the order levying penalty, the conclusions drawn by the Appellate Tribunal are findings of fact recorded agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding in respect of which a reference could be called for from the Board of Revenue. The aforesaid view was consistently adhered to by this Court. In Commercial Taxes Officer, Circle A, Kota v. Foreign Import and Export Association [1980] 45 STC 265 (Raj), it was held that an order imposing penalty for failure to carry out a statutory obligation is quasi-criminal in nature and penalty will not ordinarily be imposed unless the dealer either acted deliberately in contravention of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of his obligations. In Vijai Hosiery Mills v. State of Rajasthan [1980] 45 STC 345 (Raj) it was observed that if the assessee has a reasonable belief in his mind that the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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