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Judgment
Alok Sharma, J.—A challenge has been made to the order dated 31-10-2008, passed by Rajasthan Tax Board, Ajmer (hereinafter ''the Board''), sustaining the order dated 28-4-2005 passed by the Deputy Commissioner (Appeals) setting aside the levy of penalty passed by the Assessing on 28-8-2003 u/s 78(5) of the Rajasthan Sales Tax Act, 1994 (herein after to be referred ''1994 Act'').
The facts of the case are that vehicle No. HNG-4656 was checked on 28-8-2003 in Bhiwadi Industrial area Alwar. On checking the requisite documents as mandated u/s 78(2) of the 1994 Act to accompany the goods in transit, it was found that the declaration form ST-18-C was incomplete and the relevant important columns of the said form--invoice number and date--were blank. Notice to show cause followed as to why for contravention of Section 78(2) penalty should not be levied u/s 78(5) of the 1994 Act. Reply was filed and blank columns of the declaration form ST-18-C were claimed to be a clerical mistake. The Assessing Officer thereupon visited the respondent assessee with a penalty of 30% of the value of the goods in transit, as violation of Section 78(2) of the 1994 Act read with rule 54 of the Rajasthan Sales Tax Rules, 1995 (hereinafter ''the 1995 Rules'') on finding intent to evade tax by keeping essential details out of the declaration form with the potential of re-use thereof to the revenue''s detriment. The respondent assessee filed an appeal before the Deputy Commissioner (Appeals), who vide order dated 28-4-2005 allowed the appeal on the ground that the department had not been able to establish from an enquiry mens-rea attributable to the assessee and hence penalty u/s 78(5) of the 1994 Act was wrongly levied. Second appeal against the order dated 28-4-2005 to the Tax Board was also dismissed.
No one has appeared on behalf of respondent assessee in spite of notice.
Heard Mr. Manoj Kumar Singhal OIC on behalf of the petitioner, owing to counsel''s absence owing to an Advocates'' strike.
Considered.
It is admitted fact that the declaration form ST-18-C was incomplete, more particularly with regard to specific entries relevant for the department to ensure that goods were not sold without payment of due tax. The Hon''ble Supreme Court in the case of Guljag Industries Vs. Commercial Taxes Officer, has held that incomplete declaration form such as ST-18-A, 18-C as mandated u/s 78(2) of the 1994 Act were by itself indicative of mens-rea of the assessee to evade tax and in such cases the assessee was liable to be levied penalty automatically.
In the circumstances, in view of the judgment of the Hon''ble Supreme Court in case of Guljag Industries (supra), the judgment dated 31-10-2008 passed by the Tax Board as also the judgment dated 28-4-2005 passed by the Deputy Commissioner (Appeals) are unsustainable and are set aside. The assessment by the Assessing Officer on 28-8-2003 levying penalty on the respondent assessee is resuscitated.
Accordingly, the revision petition is allowed.