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TMI Blog2022 (7) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... y the revenue. Therefore, the merit of the defence set up by the assessee would not be decisive in a case such as this where the revenue has failed to lead any evidence in support of the charge levelled by it that the assessee had made a false declaration. The allegation that the commodities electrical goods, Restolene paste and Chemicals are not industrial stores is not found to have been proven. The issue is not to be decided on a common sense perspective of the matter. Once the charge had been levelled, it became the burden of the revenue to prove it. If some evidence had been led whether documentary or oral, the onus may have shifted on the assessee to lead evidence in rebuttal. That was not done - the merit of the explanation furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rical goods, Restolene paste and Chemicals against Form C issued by it. The value of such purchase was Rs.4,77,165/-. The assessee claim to have made such purchase against Form C and offered reconciliation of the Form C utilized, to its assessing authority, at the stage of obtaining fresh Form C. No objection was raised at the relevant time. Subsequently, on 09.02.1997, penalty notice was issued to the assessee alleging issuance of false declarations by it with respect to the above purchases against Form C. The assessee claimed bonafide dispute to avoid the penalty. It was thus claimed, the items electrical goods, Restolene paste and Chemicals were only understood as industrial stores , the assessee had treated the same to be industrial s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en done knowingly. The false representation and wrong representation both stand on different footing. In the present case there is no finding by the Tribunal that there was any deliberate representation by the dealer. A line of distinction has to be drawn in between false representation and wrong representation . Wrong representation may be on account of some inadvertence or some omission. Falsely representation takes place when a person knowingly makes representation for certain things when he knew that he is not entitled to make the said representation. This Section 10 (b) has to be read with Section 10-A of the Act. Section 10-A provides imposition of penalty in lieu of prosecution. Section 10 provides penalties and also simple im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, a finding of mens rea is a condition precedent for levying penalty under Section 10(b) read with Section 10-A of the Act. 7. While all false declarations are wrong, all wrong declarations are not false. Penalty under Section 10A read with Section 10(b) of the Act is imposable only upon issuance of a false declaration and not on a mere wrong declaration. The burden to establish issuance of false declaration would always remain on the revenue. It is so because in the context of penalty proceedings, the charge has to be proven by the revenue. Therefore, the merit of the defence set up by the assessee would not be decisive in a case such as this where the revenue has failed to lead any evidence in support of the charge levelled by it th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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