Rajasthan High Court - Jaipur
A C To Ward-I Bhiwadi Alwar vs M/S Alkhem Laboratories Ltd Bh on 27 May, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER S.B. SALES TAX REVISION PETITION NO.43/2004. Assistant Commercial Taxes Officer Vs. M/s.Alkem Laboratories Ltd. Alwar Date of Order:- May 27, 2013. HON'BLE MR.JUSTICE JAINENDRA KUMAR RANKA Mr.Pranay Jhala for Shri R.B. Mathur for the petitioner-department. None present for the respondent-assessee. ***** BY THE COURT:-
1) This revision petition has been filed by the petitioner department assailing the order of the Tax Board dated 28/08/2003 in Appeal No.1248/2001/Alwar wherein, the Tax Board affirmed the order passed by the Deputy Commissioner (Appeals)-II, Commercial Taxes, Jaipur dated 13/05/2001, who had deleted the penalty under Section 78(5) of the Rajasthan Sales Tax Act, 1994 (for short, the Act of 1994) amounting to Rs.71,340/-.
2) Brief facts as emerged out from the record is that officers of the flying squad checked the vehicle i.e. Tempo No.RJ.02 G 120 on 01/07/2001 on the route of Dharuheda to Bhiwadi and it was found that although the goods accompanied by other relevant documents i.e. bills, vouchers etc. were found in order but declaration form ST18A was partly blank. The invoice number and date was left blank. All the documents were produced at the time of checking however, in so far as the fact that declaration form ST18A was partly blank, show cause notice was issued under Section 78(2) of the Act of 1994 and since according to the assessing officer, declaration form had to be filled completely and even if one or two columns were left blank, therefore, there was violation of provisions of Section 78(5) of the Act of 1994. It was claimed by the authorized representative that only the invoice number and date column was inadvertently omitted to be mentioned in haste while all other material particulars were duly incorporated and filled in therefore, only on this basis, penalty ought not to be levied however, the assessing officer was not satisfied and imposed penalty as aforesaid.
3) The matter was carried by the respondent assessee before the Deputy Commissioner (Appeals) and the facts were reiterated. The Deputy Commissioner (Appeals) was satisfied with the explanation offered by the respondent-assessee and held that when all other documents were complete and duly produced and found to be satisfactory, genuine, not forged or fabricated and merely because one column was inadvertently left blank therefore, according to the Deputy Commissioner (Appeals), it cannot be said to be incomplete in respect of material facts.
4) Petitioner department challenged the aforesaid order of the Deputy Commissioner (Appeals) in appeal before the Rajasthan Tax Board. The facts were reiterated and the Tax Board also came to the conclusion that the finding of the Deputy Commissioner (Appeals) was justified and further held that when the declaration form was accompanied by all relevant bills and vouchers and produced on the spot and merely because one column was incomplete therefore, the Tax Board also came to the conclusion that no penalty is leviable. Hence, this revision petition.
5) Counsel for the petitioner submitted that Honble Apex Court in the case of Guljag Industries Vs. Commercial Taxes Officer : (2007) 7 SCC 269 has come to the conclusion that all the material particulars are required to be filled and since the judgment of the Apex Court is subsequent to the order of the Tax Board therefore in the light of the said judgment, when one column is left blank therefore order of the Tax Board as also the Deputy Commissioner (Appeals) deserve to be reversed. He submitted that leaving one column blank may be on account of inadvertence but not filled in therefore it will fall within the material particulars as observed by the Hon'ble Apex Court. He further submitted that the mensrea is not at all to be looked into in the light of the aforesaid judgment as the Honble Apex Court has come to the conclusion that in case like this, mensrea is not at all relevant. Accordingly, the counsel pleaded for reversal of the said order. Despite of notice to the respondent, no one has chosen to appear before this Court.
6) I have gone through the arguments advanced by the counsel for petitioner-department as also the judgment of the Honble Apex Court and the orders impugned and according to me, the judgment of the Honble Apex Court in the case of Guljag Industries supra though applies to a case like this but one has to analyse what would be the material particulars in the light of the judgment rendered in the case of Guljag Industries supra. Para 20 of the judgment of the Honble Apex Court is relevant to quote hereunder so as to come to the conclusion as to what would be material particulars in the light of the said judgment.
20. The facts enumerated above in Civil Appeal No.5197 of 2005 is the lead case in which one finds that the goods in movement were carried with blank declaration forms though signed by the consignee. The material particulars like quality, weight and description of the goods required to be filled in by the assessee (consignee) were left blank. Therefore, in this batch of civil appeals we are concerned with cases where the goods in movement were carried with blank Form ST 18A. In our view, on the face of it there was contravention of Section 78(2) of the RST Act 1994.
7) When we go by the aforesaid judgment rendered by the Hon'ble Apex Court, what would be material particulars according to me, would be filing in columns where quality, weight, description on the goods and value is required to be clearly filled in and stated. In the said judgment, at one place, the Honble Apex Court has also mentioned about filling of value in the declaration as important so if all these are filled in the declaration form ST/18/A then according to me, all other particulars though may be important but will not be relevant for imposition of penalty in a case like this. In the present case, only invoice number and date was left to be filled in and according to me, in so far as the present case is concerned, it is distinguishable to the judgment rendered by the Honble Apex Court. When all other relevant columns i.e. material particulars in the light of the judgment of the Honble Apex Court in the case of Guljag Industries supra were filled in therefore, in my view, in the present case, I come to the conclusion that merely not filling in the invoice number and date will not fall in the category of material particulars as defined by the Honble Apex Court in the case of Guljag Industries supra.
8) Had other material particulars not being filled in, possibly the argument advanced by the counsel for the petitioner-department that the form could have been re-used but when all material particulars namely quality, weight description of the goods, value, name of the transporter, name of the consigner and consignee had been duly filled in, apprehension of the department that the form could have been re-used, is not sustainable. Only because invoice number and date was left to be filled in, in my opinion, the form could not have been re-used. Therefore, in my view, judgment of the Honble Apex Court in Guljag Industries supra in so far as the present facts and circumstances are concerned, is not applicable and distinguishable.
9) It is also a finding of fact by both, the Tax Board as well as the Deputy Commissioner (Appeals) that the bills have been found to be just and proper and have been admitted to be genuine and there is no allegation of the same having been forged or fabricated therefore, according to me, the Tax Board has not committed any illegality, irregularity or perversity in passing the impugned-order while sustaining the order of the Deputy Commissioner (Appeals), who had rightly deleted the penalty in the present case. Even otherwise, it is basically a finding of fact and no question of law is involved.
10) Resultantly, the revision petition and stay application, if any, are dismissed.
(JAINENDRA KUMAR RANKA), J.
Anil/43 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW