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TMI Blog2019 (3) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... 5A of the Kerala General Sales Tax Act, 1963, ("Act" for brevity) for reason of not responding to the summons issued by the Department. 2. Though a mere imposition of penalty, this particular case has to be viewed from a wider perspective. It involves the controversy as to whether hospitals administering medicines and using consumables in the course of treatment of their patients are involved in sale of goods; exigible to sales tax. Also if they are exempted from the sales tax enactment by reason of the administration of medicines and use of consumables being in the course of and as an integral part of the medical services offered to the patients; are they liable to be registered under the sales tax enactment. The issue had been addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are not exigible to sales tax nor are liable to take registration under the Act. They were then issued with a notice under Section 45A which culminated in Annexure-A order produced in this revision. Annexure-A order specifically alleged that the respondent had not complied with the notices and summons issued from the office for production of books of accounts for the years 2001- 02 and 2002-03 to ascertain the liability to take out registration under the Act and to pay tax due on the sale of medicines through the pharmacy attached to the hospital. Immediately it is to be noticed that the ground for imposition of penalty was not non-registration or refusal to satisfy tax liability. The assessee is said to have taken time to produce the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide belief. 7. We are of the opinion that in the specific clauses pointed out by the learned Senior Government Pleader, there is no requirement for mens rea. Paisons found that mens rea or the mental element is embedded in the crucial words "evaded" or "sought to be evaded" as found in Section 45A. Kulathunkal Motors was a case in which there was a sale to a defence personnel on the strength of a declaration issued from the canteen/stores department. The sale being not to the canteen/stores department, the exemption to sales tax was not available for such transaction, was the specific finding of the court. Both these were on the question on evasion of tax, wherein definitely a deliberate intention is required. 8. When there is a violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (g) also. For finding of contravention of the provisions of the Act or the Rules made thereunder, first it has to be decided as to whether hospitals are to be registered under the sales tax enactment or not. 10. Issuance of summons to a dealer, who has not registered, for production of books of accounts and a failure to respond to the same, cannot lead to a penalty proceedings under Section 45A. If notice or summons has not been responded to, then, the Assessing Officer could decide the issue of registration as also failure to comply with the provisions of the Act in a proceeding in which best judgment assessment could also be made for estimation of the tax liability of a dealer, who is not so registered under the Act but is liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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