Assistant Commercial Taxes Officer vs Rajasthan Taxation Tribunal and Another

Heard learned counsel for the parties.

Petitioner challenges order passed by the Rajasthan Taxation Tribunal, setting aside the penalty levied against respondent-dealer u/s 22A(7) of the Rajasthan Sales Tax Act, 1954.

The reason for levy of penalty by the competent officer was that at the time of checking of the vehicle, while the goods were in transit, the goods were unaccompanied by declaration in form S.T. 18A by the importer. On appeal, said penalty had been set aside by the Deputy Commissioner (Appeals) with the findings that all the documents except form S.T. 18A was accompanying the goods, disclosing all material particulars, required to be disclosed for the purpose of Section 22A(3) and, therefore, no mens rea can be imputed on the part of respondent-dealer, for avoidance or evasion of the tax that was payable or will become payable within State of Rajasthan in respect of such goods. On that finding, penalty levied to the extent of 30 per cent of value of the goods was set aside.

However, said penalty was restored by the Rajasthan Tax Board on finding that breach of requirement of Section 22A having been admitted, penalty was rightly levied by the assessing officer.

The Rajasthan Taxation Tribunal in its order dated April 23, 1998 reversed the decision of Rajasthan Tax Board and restored the order passed by the Deputy Commissioner (Appeals) by agreeing with the same reasoning, however, with an additional reasoning that goods in transit were not even notified goods, which were required to be carried with form S.T. 18A.

Learned counsel for the Revenue while does not dispute the fact that all other documents except form S.T. 18A were available with the person-in-charge of the goods at the time of checking, has contended that the additional reasoning given by the Tribunal is not correct.

We are of the opinion that this contention of learned counsel for the petitioner need not detain us inasmuch as principle enunciated in chain of decisions by this Court for levy of penalty for breach of Section 22A, existence of mens rea on the part of dealer committing breach for avoidance or evasion of payment of tax is sine qua non for levying penalty for such breach which otherwise is of technical nature and the principle laid down by honourable Supreme Court in Hindustan Steel Ltd. Vs. State of Orissa, apply to such technical breaches or procedural lapses. Reference in this connection may be made to Assistant Commercial Taxes Officer, Flying Squad, Raniwada Distt. Jalore (Rajasthan) Vs. M/s. Voltas Limited Jaipur (Rajasthan), SLP therefrom has also been dismissed since then.

The principle was also enunciated about necessity of mens rea before levying penalty in Mahaveer Conductors v. Assistant Commercial Taxes Officer. Ward III, Circle C, Jodhpur (1997) 104 STC 65 (Raj). Since the order of learned Tribunal is sustainable on this ground alone, validity of other reason become of academic importance only and need not be considered. Petition therefore, fails and is hereby dismissed. No order as to costs.