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TMI Blog2016 (9) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be furnished a declaration in Form VAT-47 completely filled in all respect in ink and ensure that the value, date and month of use of such Form shall be punched at the specified place provided for in the Form. The AO found that in Part A, the columns relating to name, place, date were blank and in Part B, the columns relating to name, place and date were blank and in Part C, the columns relating to place, status and signatures were not found to be filled in and neither the date, month nor value column was punched and there was no punching at all. The word "shall" having been used is mandatory. The material columns remained unfilled and equally important fact that VAT-47 was not at all punched is sufficient to hold that the AO was well justified in coming to the conclusion of imposition of penalty u/Sec. 76(2)(b) and the DC(A) as well as the Tax Board having upheld the finding of the AO, is just and proper. Petition devoid of merits - petition dismissed - decided against petitioner. - S.B. Sales Tax Revision Petition No. 189/2012 - - - Dated:- 15-9-2016 - Jainendra Kumar Ranka, J. For the Petitioner : Alkesh Sharma For the Respondent : Meenal Ghiya on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee before Deputy Commissioner (Appeals) (for short, 'DC(A)') and before the DC(A) the same facts were reiterated. The DC(A) was also not satisfied with the explanation offered and accordingly upheld the penalty. 5. The matter was assailed before the Rajasthan Tax Board in further appeal and it was contended that the claim of the Assessing Officer (for short, 'AO') was not justified and there is no occasion of imposition of penalty u/Sec. 76(2). It was further contended that when all documents were found in order, the goods cannot be said to be transported with the intention of evasion of tax. However, the Tax Board also upheld the penalty order. Thus, in unison, all the three authorities came to a finding that there was contravention of provisions of Sec. 76(2) of the VAT Act as well as Rule 53 of the VAT Rules. 6. Ld. Counsel for the assessee contended that the AO has been unable to prove as to merely because some of the columns were left unfilled, whether penalty could be imposed. He further contended that only some columns remained to be filled in which even otherwise were not material particulars as laid down by the Apex Court in its judgment rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, value as well as month of use. However, the assessee deliberately did not punch all the three main requirements i.e. date, month and value and the explanation offered is worth rejection. 9. Counsel also dispelled the arguments of the counsel for the assessee that signatures were found on the declaration form and drew attention of the Court towards the pleadings in the petition at Page 9 where the assessee himself has mentioned that signatures were also not made on the declaration form. She thus contended that the AO in the penalty order had merely mentioned about few columns while the assessee himself has agreed that the signatures were also not found on the declaration form. Thus, she contended that the order of the Tax Board is just and proper and all the three authorities have come to a definite finding of fact in unison about imposition of penalty. She relied upon judgment rendered by the Apex Court in the case of Guljag Industries Vs. Commercial Taxes Officer (supra). 10. I have considered the arguments advanced by counsel for the parties and have perused the order impugned as well as the other orders. 11. At the outset, it would be appropriate to quote Sec.76 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, for inspection, at any place within his jurisdiction and the provisions of sub-section (2) shall mutatis mutandis apply. (5) Where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section (2), or documents produced appears to be false or forged, the Incharge of the check-post or barrier or the officer authorised under sub-section (4) may- (a) direct the owner or a person duly authorised by such owner or the driver or the person Incharge of the vehicle or carrier or of the goods not to part with the goods in any manner including by re- transporting or re-booking, till a verification is done or an enquiry is made, which shall not take more than seven days; (b) seize the goods for reasons to be recorded in writing and shall give a receipt of the goods to the person from whose possession or control they are seized; (c) release the goods seized under clause (b) to the owner of the goods or to a person duly authorised by such owner, during the course of the proceeding, if adequate security of the amount equal to the estimated value of the goods is furnished. (6) The Incha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either through Short Messaging Service (S.M.S.) or through Interactive Voice Response System (I.V.R.S.), to the department on the telephone numbers allotted for this purpose through a pre intimated cellular phone before the goods enter into the territory of the State. On intimation of the aforesaid information the dealer shall receive an Identification number through S.M.S. on same cellular phone. He shall also furnish or cause to be furnished the declaration Form VAT-47 completed in all respect to his assessing authority by the next working day. The owner or a person duly authorised by such owner or the driver or the person incharge of a vehicle or carrier or of goods in movement shall intimate the said Identification number to the assessing authority or the person authorised by the Commissioner at the time of checking of goods in movement, which shall be deemed to be prescribed form with goods in movement. (2) The owner or a person duly authorised by such owner or the driver or person Incharge of a vehicle or carrier or of goods, shall carry with him the documents specified in clause (b) of sub- section (2) of section 76 including declaration form prescribed in sub-rule (1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in Part B, the columns relating to name, place and date were blank and in Part C, the columns relating to place, status and signatures were not found to be filled in and neither the date, month nor value column was punched and there was no punching at all. The word shall having been used is in my view mandatory. 15. It would also be appropriate to quote the pleadings which the assessee himself has admitted in Para 1 at Page 9 in his petition about the signatures having not been made which reads ad- infra:- It is further submitted that when the vehicle was on national highway proceeding towards Jaipur it was checked by the respondent Assistant Commercial Taxes Officer at Bhadra and all the aforesaid documents were produced for verification before the said ACTO who after examining the documents found that all the documents were there as required under section 76(2) of the Act along with the driver except that some of the columns of the aforesaid form VAT 47 were not filled in therefore, opining that their's is a case of evasion of tax had detained the vehicle and had issued them a notice mentioning therein that in form VAT 47 bearing No.2417595 in the original and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a remedy for the loss of revenue. The object behind enactment of Section 78(5) is to emphasise loss of revenue and to provide a remedy for such loss. It is not the object of the said Section to punish the offender for having committed an economic offence and to deter him from committing such offences. The penalty imposed under the said Section 78(5) is a civil liability. Willful consignment is not an essential ingredient for attracting the civil liability as in the case of prosecution. Section 78(2) is a mandatory provision. If the declaration Form 18A/18C does not support the goods in movement because it is left blank then in that event Section 78(5) provides for imposition of monetary penalty for non- compliance. 27. Default or failure to comply with Section 78(2) is the failure/default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. Penalty under Section 78(5) is attracted as soon as there is contravention of statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods with blank forms though signed by the consignee. In fact, the assessees resorted to the above modus operandi to hoodwink the competent officer at the check-post. As stated above, if the form is left incomplete and if the description of the goods is not given then it is impossible for the assessing officer to assess the taxable goods. Moreover, in the absence of value/price it is not possible for the A.O. to arrive at the taxable turnover as defined under Section 2(42) of the said Act. therefore, we have emphasized the words material particulars in the present case. It is not open to the assessees to contend that in certain cases of interstate transactions they were not liable in any event for being taxed under the RST Act 1994 and, therefore, penalty for contravention of Section 78(2) cannot be imposed. As stated hereinabove, declaration has to be given in Form 18A/18C even in respect of goods in movement under interstate sales. It is for contravention of Section 78(2) that penalty is attracted under Section 78(5). Whether the goods are put in movement under local sales, imports, exports or interstate transactions, they are goods in movement, therefore, they have to be supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the RST Rules, 1995, to a person, to produce the required documents and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check- post of the State. It is only when a person despite giving such an opportunity, is not able to produce the document and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check-post 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 Hon'ble Supreme Court in Guljag Industries Vs. Commercial Taxes Officer(supra), in which it has been clearly held in para 30, after quoting the provisions of Section 78, that; In the present case also the statute provides for a hearing. However, that hearing is only to find out whether the assessee has con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erall facts and all the three authorities having come to a finding of fact that the material columns remained unfilled and equally important fact is that VAT-47 was not at all punched is sufficient to hold that the AO was well justified in coming to the aforesaid conclusion of imposition of penalty u/Sec. 76(2)(b) and the DC(A) as well as the Tax Board have upheld the finding of the AO, which is just and proper. 23. In view of the aforesaid, no question of law is found to be involved and it being essentially a finding of fact based on documents on record being covered by the judgment in the case of Guljag Industries Vs. Commercial Taxes Officer(supra) and Larger Bench of this Court in the case of Assistant Commercial Taxes Officer Vs. M/s Indian Oil Corporation Ltd. (supra), the controversy is no more res-integra and I find no illegality, infirmity or perversity in the order impugned so as to call for interference by this Court. The judgments relied upon by counsel for the petitioner are not applicable in the facts and circumstances of the instant case in the light of law settled by the Apex Court and Larger Bench of this Court (supra). 24. Consequently, the petition being de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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