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1994 DIGILAW 194 (MP)

SHAW LEINER LIMITED v. ADDITIONAL ASSISTANT COMMISSIONER OF SALES TAX, JABALPUR REGION, JABALPUR

1994-03-07

P.P.NAOLEKAR, U.L.BHAT

body1994
JUDGMENT U. L. BHAT, C.J. - First petitioner is the assessee in this case. First petitioner's name is now changes as second petitioner. The assessment year is 1974. The statutory authority issued show cause notice to the first petitioner under section 43 of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act", for short) and after considering the reply, passed order imposing penalty under section 43. There are two separate orders - one in relation to tax payable under the State Act and the other with regard to tax paid under the Central Sales Tax Act. Revision petitions were dismissed. First petitioner filed two separate writ petitions which were allowed and the cases were remanded for fresh consideration under section 43 of the Act. After remand, the statutory authority passed fresh orders once again imposing penalty. These orders are under challenge. 2. First petitioner was required to submit quarterly as well as annual returns. Quarterly returns were to be submitted within 30 days of the end of the quarter. Returns for first, second and fourth quarters were belated. Admittedly, original returns did not reveal the correct turnover, i.e., provisional sales, central sales, export sales as well as s.o.s. sales. Under rule 19 of the Rules, as in force at that time, revised returns could be submitted within the prescribed limit which in this case was January 30, 1975. First petitioner submitted 4 revised returns for the entire year on September 25, 1978. Assessment orders were passed on November 30, 1978, more or less adopting the state of affairs reflected in the account books submitted along with the revised and also imposing penalty under sections 17(1) and 43 and rule 69-A of the Rules. In the course of arguments, challenge is confined only to the penalty levied under section 43 of the Act. 3. In the course of arguments, challenge is confined only to the penalty levied under section 43 of the Act. 3. Learned counsel for the first petitioner submitted that the original returns were based on incomplete data as the particulars regarding the export sales were not available, that all the relevant figures became available later on and, therefore, revised returns were filed along with the account books on September 25, 1978, that the difference in tax was paid even at that time, namely, September 25, 1978, that the assessment was completed more or less accepting what is seen in the revised returns and account books, that there was no mens rea on the part of the first petitioner and, therefore imposition of penalty was wholly unjustified. Learned counsel pointed out that the revised returns were not accepted at all and the statutory authority proceeded with the levy of penalty ignoring the revised returns on the ground that they were filed belatedly. Learned counsel also relied on a decision of this Court in National Garage v. President, Board of Revenue (1974) JLJ 364. 4. The above case related to assessment year 1960. Returns which were filed initially did not indicate correct state of affairs. Revised return dated July 31, 1964 was filed before completion of the assessment. Rule 19 as it stood then entitled the assessee to file return without any limitation of time. It was held that when an assessee submitted revised return, he was, in effect, withdrawing the original return, the question of accepting or rejecting the original return did not arise and since he was allowed to file revised return, the original return could not be utilised for imposition of penalty. Since the revised return was neither false nor resulted in concealment, penalty could not have been levied under section 43 of the Act, though it was leviable under section 17 for filing the return late. 5. Rule 19, as it then stood, read as follows : "19. Revised returns. Since the revised return was neither false nor resulted in concealment, penalty could not have been levied under section 43 of the Act, though it was leviable under section 17 for filing the return late. 5. Rule 19, as it then stood, read as follows : "19. Revised returns. - A dealer who desires to submit a revised return under sub-section (2) of section 17 shall do so in form VIII and shall append thereto an explanatory note specifying the omission, error or wrong statement by reason of which it has become necessary to submit the revised return and indicating the difference between the original and the revised return." This rule was substituted with effect from January 21, 1961 by rule 19 which reads as follows : "19. Revised returns. - (1) A dealer who desires to submit a revised return under sub-section (2) of section 17 in respect of any quarter of a year other than the last quarter, shall do so at any time before the date on which the submission of the return for the last quarter of that year becomes due or would have become due but for the closure of his business. A revised return in respect of the last quarter of a year shall be submitted at any time before the date on which the submission of the return for the first quarter of the year immediately succeeding becomes due or would have become due but for the closure of his business : Provided that nothing in this sub-rule shall entitle a dealer to file a revised return in respect of any period after an assessment has been made in respect of such period. (2) A revised return referred to in sub-rule (1) shall be submitted in form VIII and shall be accompanied by an explanatory note specifying the omission, error or wrong statement by reason of which it has become necessary or submit the revised return and indicating the difference between the original and the revised return." 6. Thus, it can be seen that while there was no time-limit prescribed for filing revised return under the original rule, time-limit has been specified in the revised rule. Revised return is provided in section 17(2) of the Act. Thus, it can be seen that while there was no time-limit prescribed for filing revised return under the original rule, time-limit has been specified in the revised rule. Revised return is provided in section 17(2) of the Act. Section 17(2), as it originally stood, stated that if any dealer discovers any omission, error or wrong statement in any return furnished by him under sub-section (1), he may furnish a revised return in the prescribed manner. This provision was amended by Act No. 18 of 1960 by adding after the words "prescribed manner" the words "and within the prescribed time". It was on account of this amendment that rule 19 came to be amended. Sub-rule (1) of rule 19 contains the prescription of time-limit. Revised returns for the first three quarters shall be submitted before the date on which the submission of the return of the last quarter became due. Revised return for the last quarter shall be submitted before the date on which submission of the return for the first quarter of the next year becomes due. 7. An attempt is made by the first petitioner to contend that notwithstanding the time-limit prescribed, revised return could be lawfully filed before completion of the assessment by virtue of proviso to sub-rule (1) of rule 19. According to the proviso, nothing in the sub-rule shall entitle the dealer to file revised return in respect of any period, after assessment has been made in respect of such period. 8. It is not possible to understood the proviso as enlarging the time-limit specified in sub-rule (1). On the other hand, it is restrictive of the time-limit prescribed in sub-rule (1). The time-limit specified in sub-rule (1) should be adhered to, but not so as to enable a revised to be filed after completion of the assessment. If the assessment has been completed before the expiry of the time-limit prescribed in sub-rule (1), the revised return cannot be received. Going by rule 19 as amended, the revised returns were out of time and could not be looked into. It cannot also be accepted that by belatedly filing the revised returns, the first petitioner withdrew the original returns. In this view, we are of opinion that the dictum laid down in the decision referred to above is inapplicable to the facts of the present case. 9. It cannot also be accepted that by belatedly filing the revised returns, the first petitioner withdrew the original returns. In this view, we are of opinion that the dictum laid down in the decision referred to above is inapplicable to the facts of the present case. 9. Section 43 of the Act enables the authority concerned to impose penalty if the authority is satisfied that "a dealer has concealed his turnover of the aggregate purchase prices in respect of any goods or has furnished inaccurate particulars of such sales or purchases as the case may be, or has furnished a false return". The provision also fixes the extent of penalty which could be levied. The statutory authority in this case was satisfied that the first petitioner had concealed his turnover and had also furnished inaccurate particulars and furnished false returns. 10. The original return showed gross turnover of Rs. 1,81,10,462.52 as against the gross turnover reflected in the account books at Rs. 2,77,51,251.62. Along with the time-barred revised returns, the first petitioner had to pay an additional amount of Rs. 1,63,980.19 towards Central Sales Tax and Rs. 87,549.06 towards State sales tax. In other words, a sum of more than Rs. 2.5 lacs due as tax was paid on September 25, 1978, instead of being paid at the relevant time in the assessment year 1974, i.e., it was paid after a delay of nearly 4 years. It may be, as contended by learned counsel for the first petitioner, that the books of account reflected more or less correctly the state of affairs shown in the time-barred revised returns. But that does not change the nature and consequences of the original returns. 11. It is true, as contended by the first petitioner, that every incorrect statement or mis-description in the return may not amount to concealment of turnover or make the return a false return. There must be an element of mens rea present, there must be an attempt to hide or keep secret or disguise the real turnover or the real tax payable. If the entries in the original return could be shown to have been made on account of bona fide error or in good faith, mens rea is contra-indicated. There must be an element of mens rea present, there must be an attempt to hide or keep secret or disguise the real turnover or the real tax payable. If the entries in the original return could be shown to have been made on account of bona fide error or in good faith, mens rea is contra-indicated. The argument before us is that the revised returns reflected more or less the correct position and that was ultimately accepted with minor changes for the purpose of completing the assessment and this is proof of bona fides or good faith and absence of mens rea. If the revised returns had been submitted in time, perhaps the argument deserved serious consideration. Revised returns were filed beyond time and could not be accepted as revised returns in the eyes of law. The original returns, therefore, cannot be treated as having been withdrawn. Whether there has been concealment or falsity of return must be adjudged with reference to original returns and not the revised returns. The difference between the gross turnover disclosed in the original returns and the actual gross turnover reflected in the account books is so much that it is not difficult to draw the inference of deception, concealment or falsity. The suppression of about one-third of the real gross turnover is tell-tale. The only explanation offered is that at the time of original returns, many of the particulars of the import business were not forthcoming. The discrepancy is not restricted to figures only about the import business. Show cause notice mentions serious discrepancies in State sales, export sales, Central sales and s.o.s. sales. No material was placed before the statutory authority to support the contention regarding want of requisite particulars at the time of the submission of original returns. There is no dispute that the trading account was finalised on May 29, 1975. First petitioner did not even make an attempt to submit revised returns immediately thereafter. Revised returns were postpones till May 29, 1978. This circumstance, taken along with other circumstances referred to above clearly justified the conclusion of the statutory authority that the returns were false and there was deliberate concealment of gross turnover. 12. We find no ground to interfere. We accordingly dismiss the writ petitions, but without costs. Security amount, if deposited, be refunded to the petitioner. Writ petitions dismissed.