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TMI Blog1994 (1) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 3,60,437.95 during period from July 13, 1984 to January 8, 1988, from outside the State of Orissa at concessional rate of tax by furnishing declarations in form C. During scrutiny of the statement in form V furnished on September 20, 1989, it was noticed by the Sales Tax Officer, Sambalpur-II Circle, that the certificate of registration of the dealer granted under the Central Act did not authorise it to purchase "silk yarn" at the concessional rate. He was of the view that the petitioner had committed an offence covered under section 10(b) of the Central Act and therefore, liable to pay penalty under section 10-A of the Central Act. The petitioner was required to show cause as to why penalty shall not be imposed. No reply was submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available to be purchased by issuing declaration forms at a concessional rate under the Central Act. No sooner the petitioner came to know and realised that its impression was not legally correct, it applied for amendment of certificate of registration and item "silk yarn" was duly incorporated. There was no mala fide involved, and in any event, no mens rea has been established and therefore, imposition of penalty is not warranted. The quantum is also pleaded to be high. Mr. Ray for the Revenue on the other hand, submitted that the very fact that the petitioner purchased articles by issuing declaration forms in the absence of any entries in the certificate of registration and did not respond to show cause notice issued shows that it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as involves an error or untruth, intentionally or knowingly put forward. A thing is called 'false' when it is done, or made, with knowledge, actual or constructive, that it is untrue or illegal, or is said to be done falsely when the meaning is that the party is in fault for its error. Pouts v. State 149 NE 551, 554 and Monahan v. Mutual Life Ins. Co. of New York 212 NW 269, 271". While considering the implication of the use of word "false" in "false return", the apex Court observed in Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax [1980] 45 STC 197 that a return cannot be said to be "false" unless there is an element of deliberateness in it. It is possible that even where the incorrectness of the return is clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate of registration does not cover that item, but knowing fully well that it does not state that it is covered. "Bona fide" is not an expression of art but is a positive circumstance which has to be established by relevant and acceptable materials. Sub-section (1) of section 10-A provides imposition of penalty on a dealer in lieu of prosecution. Penalty can be imposed only in respect of offences described in clause (b) or clause (c) or clause (d) of section 10. 5.. In the case at hand, the petitioner was granted opportunity to show cause as to why penalty should not be imposed. There was no response, and therefore, the Sales Tax Officer concluded that the dealer deliberately and with mala fide intention issued declaration forms knowing f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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