9911796707
TMI Blog2013 (2) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... petition has been filed by the petitioner-Department, under section 84 of the Rajasthan Value Added Tax Act, 2003 (in short, the Act ) against the order dated November 22, 2010 passed by the Rajasthan Tax Board, Ajmer (in short, the Board ) in Appeal No. 1378 of 2009, which upheld the order dated April 30, 2009 passed by the learned Deputy Commissioner (Appeals)-II (in short, the DC (A) ), who had deleted the levy of penalty of ₹ 1,09,009 imposed by the learned Assistant Commercial Taxes Officer (in short, the ACTO ), under section 78(5) of the said Act. The brief facts of the case as emerging on record are that the respondent had sent certain goods through a transport vehicle bearing No. HR-469929 from Delhi to Jaipur, contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTO, being dissatisfied with the respondent, imposed the penalty on the respondent-company as stated above. Aggrieved by the said penalty order, the respondent preferred an appeal before the learned DC (A) and reiterated the facts and submitted that the assessee was prevented from carrying the form No. ST-18A on account of inadvertence for the reasons stated earlier and that all the other documents were made available to the satisfaction of ACTO and immediately on demand, form No. ST-18A was called for from Delhi office and submitted before the ACTO and argued that keeping in view, all the facts and circumstances of the case and also keeping in view, the bona fide mistake committed by the clerk for not handing over the form No. ST-18A to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere available with the driver but the most important document, i.e., form ST-18A was not made available, therefore, the learned ACTO was justified in imposing the penalty upon the respondent. She further submitted that requirement of the document under the Act, being primary, it needed to be carried and since, the respondent had failed to make compliance of the requirement of carrying of the form No. ST-18A under the Act, therefore, the penalty had rightly been imposed against the respondent and the respondent has wrongly been exonerated from the penalty so imposed by the DC (A) and the Tax Board. I have considered the arguments advanced by the learned counsel appearing on behalf of the petitioner-Department and perused the material on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under section 78(5) if the requisite documents referred to in sub-clause (2)(a) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in section 78(5) can be regarded as technical or venial. Once the ingredients of section 78(5) are established, after giving a hearing and complying with the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a citizen that the taxing statute contravenes article 19, courts would naturally be circumspect and cautious' as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in section 78(5) of the Act. It is very clear that though the provisions of section 78(5) of the Act, have been held to be just, proper and valid but it is not automatic, the principles of natural justice, demand an opportunity to be given to rebut and if the documents are produced then the benefit of producing the documents ought to have been given to the assessee and no penalty should have been imposed. Therefore, the aforesaid judgment of the honourable apex court is squarely applicable in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d focusing on the alleged improbability of VAT form 47 being lodged in the dash-board of the vehicle in transit. Consequently, the revision petition is allowed. The impugned order dated June 29, 2012 passed by the Rajasthan Tax Board, Ajmer is quashed and set aside. The learned counsel for the petitioner has placed reliance on the judgment rendered in the case of Assistant Commercial Taxes Officer, Ward IV, Circle B, Udaipur v. Raja Glass House [1989] 75 STC 417 (Raj) and submitted that the facts of the present case are identical to the facts of the said case. On perusal of the aforesaid judgment, I notice that the facts are totally distinguishable to that of the present case and not identical in as much as in the case of Raja Gla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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