Jainendra Kumar Ranka, J. - (1.) BY instant revision petition, the petitioner -assessee has challenged the order dated June 17, 2011 passed by the Rajasthan Tax Board in Rectification Application No. 88/2007/Jaipur. It has been submitted by counsel for the petitioner -assessee that the Tax Board decided the controversy in the instant case earlier by its order dated June 25, 2007 wherein the appeal of the respondent -Department was dismissed. Prior to that, the Deputy Commissioner (Appeals) also allowed the appeal of the petitioner -assessee. It is further submitted that the rectificatory order came to be passed by the Tax Board on April 29, 2011 and thereafter, final order was passed on June 17, 2011. He submitted that there is no justification for any rectificatory order or passing an order under section 37 of the Rajasthan Sales Tax Act, 1994 as there is no mistake apparent on the face of record which could be rectified. According to him, it is a case of review which is impermissible under the Act. Only mistake apparent on the face of record could have been rectified. Therefore, in the light of these facts, he submitted that the order of the Tax Board deserves to be quashed as it is a settled proposition that no rectification could be made in the light of these facts. In the alternative, he submitted that it is a case where declaration form ST -18A though was submitted but has been found to be incomplete and, therefore, in the light of the judgment of the honourable apex court, in the case of Guljag Industries v. Commercial Taxes Officer reported in : [2007] 9 VST 1 (SC) : [2007] 293 ITR 584 (SC) : [2007] 7 SCC 269, the same deserves to be restored back to the assessing officer as after the judgment of the honourable apex court, this court in number of cases, has remanded the matter back to the assessing officer to consider the issue afresh.
(2.) COUNSEL for the respondents submitted that since there was a mistake apparent, therefore, the rectificatory order came to be passed by the Tax Board and it is a mistake apparent and therefore, the impugned order passed by the Tax Board was just and proper. She further submitted that the case of Guljag Industries : [2007] 9 VST 1 (SC) : [2007] 293 ITR 584 (SC) : [2007] 7 SCC 269 has been considered by the learned Tax Board and, therefore, in the light of the same, this matter may not be restored back to the assessing authority. The honourable Supreme Court in the case of Guljag Industries : [2007] 9 VST 1 (SC) : [2007] 293 ITR 584 (SC) : [2007] 7 SCC 269 held that object behind enacting section 78(5) is to emphasise loss of revenue and to provide a remedy for such loss. Section 78(2) is a mandatory provision and goods put in movement under local sales, imports, exports or inter -State transactions have to be supported by requisite declaration. The honourable apex court reproduced rules 53 and 54 of the Rajasthan Sales Tax Rules, 1995 (for short, "the Rules") and the prescribed form of declaration in forms ST -18A and 18C with its contents to be filled in by consignor and consignee. It is noticed that the said judgment is basically confined to cases where blank/incomplete form ST -18A/18C had accompanied the goods in movement. It was found that in the appeal of Guljag Industries, lead case the goods in movement were carried with blank declaration form though dated and signed by the consignee but the material particulars like quality, weight and description of the goods were left blank. It held that declaration given by the consignee is meaningless. It observed "if the form is left incomplete and if the description of the goods is not given, then it is impossible for the assessing officer to assess the taxable goods. Moreover, in the absence of value/price, it is not possible for the assessing officer to arrive at a 'taxable turnover' as defined under section 2(42) of the said Act". The honourable court further referred to the judgment in the case of State of Rajasthan v. D.P. Metals : [2001] 124 STC 611 (SC) where it has been observed "If by mistake some of the documents were not readily available at the time of checking the principles of natural justice might require opportunity being given to produce the same" and distinguished on facts. In ultimate analysis, the honourable court stated "in the light of our judgment, we direct the Department to dispose of the cases in accordance with law enunciated by us". It also held that mens rea is not an essential ingredient for contravention of section 78(2) of the RST Act, 1994 and breach of section 78(2) would attract levy of penalty under section 78(5) of the RST Act, 1994 in cases where goods in movement have travelled with an incomplete form No. 18A/18C. Accordingly, it directed the Department to dispose of the cases in accordance with law enunciated in the said case.
(3.) IT is noticed that thereafter, this court, considering all the facts and circumstances and the judgments, has expressed that principles of natural justice have to be followed and accordingly this court in the case of Commercial Taxes Officer v. Jain Tubes reported in, [2011] 30 Tax Update 125, ACTO v. Hariom Company reported in, [2011] 30 Tax Update 285 and so also the judgment of this court passed in the case of Assistant Commercial Taxes Officer v. Madhusudan Soap Udyog : [2014] 69 VST 81 (Raj.) (SB Sales Tax Revision Petition No. 151 of 2011, decided on May 9, 2013) has remanded the matter back to the assessing officer to provide an opportunity afresh and consequently, the respondent herein also deserves to be allowed opportunity of fresh hearing in the light of the law enunciated by the honourable apex court in the case of Guljag Industries : [2007] 9 VST 1 (SC) : [2007] 293 ITR 584 (SC) : [2007] 7 SCC 269.;