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TMI Blog2016 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... form is required to be carried, which was duly signed by the authorized signatories of the respondent but for the reasons best known to it, all other particulars were admittedly left blank. The mandate of law and requirement is to be fulfilled. Thus the Hon'ble Apex Court has clearly held that declaration forms 18A/18C, which have been duly signed by the assessee but left blank, then section 78(2)(a) stood attracted. Also an opportunity was granted by the AO to the assessee of proving its case which included filling up of the declaration form, which the assessee now claims before this court, but after almost 15 years, the matter can not be remitted back to the AO for rectifying the deficiency/discrepancy which remained in the declaration form ST-18A. So, when an opportunity was already granted, second opportunity, in the facts and circumstances of the case and that too after fifteen years, is not required to be given. Therefore, penalty under Section 78(5) of the Rajasthan Sales Tax Act, 1994 has to be imposed. - Decided in favour of revenue - S. B. Sales Tax Revision Petition No. 25 of 2005 - - - Dated:- 10-7-2015 - J. K. RANKA, J. For the Petitioner : Ms. Tanvi Sahai o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of determining the liability for penalty, in terms of section 78(5) of the RST Act, 1994. (ii) The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of section 78, on proving violation of sub-section (2) of section 78 of the RST Act, 1994. (iii) The amendment to rule 55 of the RST Rules, 1995, in pursuance to the decision of the honourable Supreme Court in State of Rajasthan v. D. P. Metals [2001] 124 STC 611 (SC), authorises the authority empowered, to make an enquiry of violation of section 78(2), and not to adjudicate as to whether the mens rea was present in violation of sub-section (2) of section 78, for imposing penalty under sub-section (5) of section 78 of the RST Act, 1994. (iv) The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of section 78, on proving violation of sub-section (2) of section 78 of the RST Act, 1994. 4. After answering the questions in S. B. Sales Tax Revision No. 92 of 1999 (Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB]), and other connected sales tax revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the basis that mens rea was not proved by the Revenue and contended that much water has flown thereafter and not only the apex court in the case of Guljag Industries v. Commercial Taxes officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269 as also the Larger Bench of this court in the case of Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB] has held that mens rea is not essential. After relying upon both the judgments, she contended that if the form was left blank, even though the claim of the assessee might have been that it was a stock transfer, even then it was with the intention of evasion of tax. She contended that when bills and vouchers were found, then why the declaration form ST-18A was left blank has not been clarified by the assessee before all the three authorities and both the appellate authorities have solely gone on the basis of mens rea when in a case like this, mens rea is not essential. She further contended that there was requirement of carrying declaration form ST-18A in a case of stock transfer as well and the assessee being a limited company was certainly aware of the declaration form to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer (FAC), Chennai [2010] 30 VST 366 (Mad) and Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 (SC). 10. I have considered the arguments advanced by counsel for the parties. 11. At the outset, it may be observed that the honourable apex court in the case of Guljag Industries v. Commercial Taxes Officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269 and Larger Bench of this court in the case of Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB], has held that mens rea is not essential and therefore, the observation of the Tax Board in this regard is reversed. 12. It would be appropriate to quote section 78(5) of the RST Act, 1994 and rule 53 of the RST Rules, 1995, which reads as under: 78. Establishment of check-post and inspection of goods while in movement: (5) The incharge of the check-post or the officer empowered under sub-section (3), after having given the (owner of the goods or a person authorised in writing by such owner or the person in-charge of the goods) a reasonable opportunity of being heard and after having held such inquiry as he may deem fit, shall impose on him for possession or movement of goods, whether seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (b) of this sub-rule, in respect of the goods in movement and shall produce the same, suo motu before the incharge of the entry check- post at the time of entry within the State or before the officer empowered under section 78, at the time of inspection under sub-section (3) of section 78, who shall retain the original portions of the declaration form and return the duplicate portion after signature and marking seal in token of having verified it, to the person producing it, and such officer shall sent the retained original portion of the declaration form to the assessing authority of the registered dealer or to the authority who issued the declaration form, in the case of dealer or other person other than registered dealer. (d) If the declaration form referred to in clause (a) or (b) in respect of the goods in movement has already been submitted to the incharge of the entry check-post or to the officer empowered under section 78, any person transporting the goods, shall, on inspection by an officer empowered under section 78, at any subsequent place, produce the countersigned and sealed copy of the aforesaid declaration along with other documents specified in clause (a) of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 18A/18C is like a return under the Income-tax Act, 1961. The assessing officer completes the assessment on the basis of form 18A/18C. If that form is left blank in all material respects then it is impossible for the A. O. to arrive at the taxable turnover of the assessee. Therefore, in our view, the judgment of this court in D. P. Metals [2001] 124 STC 611 (SC); [2002] 1 SCC 279 has no application to the present case. 14. Thus the honourable apex court has clearly held that declaration forms 18A/18C, which have been duly signed by the assessee but left blank, then section 78(2)(a) stood attracted. 15. The Larger Bench of this court in the case of Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015] 82 VST 200 (Raj) [FB], after considering not only the judgment of Guljag Industries v. Commercial Taxes Officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269 and State of Rajasthan v. D. P. Metals reported in [2001] 124 STC 611 (SC); [2002] 1 SCC 279, has opined in para Nos. 32 to 34 as under (pages 222 and 223 in 82 VST): 32. In the case of submission of false or forged document and declaration, sub-section (2) of section 78 or sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument and/or declaration forms completed in all respects, when the goods enter or leave the nearest checkpost of the State, or the documents are found to be false or forged, after enquiry, that a penalty may be imposed, which is a civil liability for compliance of the provisions of the Act for the purposes of checking the evasion of tax. It is thus not correct to submit that penalty for submission of false or forged document or declaration, necessarily involves adjudication, for which mens rea is relevant, and is a necessary ingredient. Any doubts in this regard have been clarified by the honourable Supreme Court in Guljag Industries v. Commercial Taxes Officer [2007] 9 VST 1 (SC); [2007] 293 ITR 584 (SC); [2007] 7 SCC 269, in which it has been clearly held in para 30, after quoting the provisions of section 78, that (para 23, page 32 in 9 VST): '. . . In the present case also the statute provides for a hearing. However, that hearing is only to find out whether the assessee has contravened section 78(2) and not to find out evasion of tax which function is assigned not to the officer at the check-post but to the AO in assessment proceedings. In the circumstances, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contradictory decisions with regard to the same assessee and based on the same set of facts. In the case of Essar Shipping Ports Logistics Limited v. Commercial Tax Officer (FAC), Chennai [2010] 30 VST 366 (Mad), the Madras High Court held that the lower authority is bound by the decision of higher authority and the assessing authority is bound by the decision of Tribunal on same facts. In the case of Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 (SC), the honourable apex court held that If the Revenue did not accept the correctness of the judgment in the case of Pradip Ramanlal Sheth [1993] 204 ITR 866 (Guj), it should have preferred an appeal thereagainst and instructed counsel as to what the fate of that appeal was or why no appeal was filed. It is not open to the Revenue to accept that judgment in the case of the assessee in that case and challenge its correctness in the case of other assessees without just cause .. . . In so far as the above proposition is concerned, it is well-settled but in my view, all the three authorities are inapplicable on the facts of the instant case in view of the judgment of honourable apex court in Guljag Industries v. Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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