DWARKA PRASAD, J. - (1.) THESE two applications under section 15 (3) of the Rajasthan Sales Tax Act, 1954 (hereinafter called "the Act") have been treated by us as revision petitions under section 15 (1) of the Act, as amended by the Rajasthan Sales Tax (Amendment) Act, 1984, at the request of the learned counsel for the department. The amending Act came into force with effect from May 1, 1985, and thereafter only a revision petition under section 15 (1) was maintainable and not an application for calling for a reference under section 15 (3a) of the Act as it existed prior to the said amendment.
(2.) AFTER hearing learned counsel for the department on merits, we find no force in these revision petitions. Penalty under section 16 (1) (e) of the Act was imposed upon the assessee on the ground that he had concealed particulars of sales in the returns furnished by him and had deliberately furnished inaccurate particulars in his returns. However, penalty imposed upon the assessee under section 16 (1) (e) was set aside by the Deputy Commissioner (Appeals), Commercial Taxes, Alwar, on an appeal by the assessee, on the ground that there was no mala fide intention on the part of the assessee in showing part of the taxable turnover as tax paid and that at the time of assessment, the assessee had voluntarily disclosed the error committed by him as a part of the oil manufactured by the assessee was transferred by mistake from the tax-paid account to taxable account. It was held that there was a bona fide mistake which was realised by the assessee at the time of assessment. The learned single Member of the Board of Revenue affirmed the finding recorded by the Deputy Commissioner (Appeals), Commercial Taxes, and while dismissing the revision petitions filed by the assessing authority it was held that there was nothing to show on the record that the assessee had concealed the sales. The Division Bench of the Board of Revenue also concurred in the conclusion arrived at by the single Member and held that the discretion exercised by the appellate authority in setting aside the penalty could not be lightly interfered with. In Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) it was observed by their Lordships of the Supreme Court that if the assessee accepted the error committed under a misapprehension or genuine belief and discretion was exercised by the taxing authority on the bona fide belief that the assessee was not liable for imposition of penalty, as he was not guilty of conduct contumacious or dishonest, nor he had acted in conscious disregard of his obligations, in such circumstances, the discretion exercised by the taxing authority cannot be interfered with, as the question whether there was conscious concealment on the part of the assessee in respect of the taxable turnover or there was mala fide or deliberate intention on the part of the assessee to withhold payment of sales tax due under the Act is essentially a question of fact and no question of law arises in the matter. Another submission which was made by the learned counsel for the department was that Division Bench of the Board of Revenue was not justified in upholding the findings of the single Member of the Board of Revenue and setting aside the penalty under section 16 (1) (n) of the Act. It is not disputed before us that section 16 (1) (n) of the Act, as it stood at the relevant time, read as under : " 16. Offences, penalties and prosecutions, etc.- (1) If any person - . . . . . . . . . . . . . . . . . . . . . . (n) wilfully acts in contravention of any provisions of this Act, not otherwise provided for; . . . . . . . . . . . . . . . . . . . . . . " The allegation is that the assessee did not file a return in form 86 as required by rule 26, showing the amount of goods imported by him in addition to the quarterly return or the annual return, as the case may be. As no penalty was imposable under section 16 (1) (n) of the Act, as it stood at the relevant time, in respect of breach of any provision of the rules, even if there was a breach of the provision of rule 26 and even if additional return required to be filed in form 86 prescribed by aforesaid rule 26 was not filed, the dealer was not liable for imposition of penalty. Under clause (n) of section 16 (1), as it stood at that time, penalty could be imposed only in respect of wilful acts done in contravention of any provision of the Act and not in contravention of the provisions of the Rules.
(3.) WE may observe that by the amending Act No. 9 of 1976, which replaced Ordinance No. 1 of 1976 and came into force with effect from January 2, 1976, the provisions of section 16 (1) (n) were amended and contravention of the provisions of the Act as well as the provisions of the Rules have been made subject-matter of imposition of penalty under section 16 (1) (n ). Thus, we are of the view that before January 2, 1976 penalty could not be imposed on the dealer for contravention of the provisions of the Rules. In this view of the matter, the penalty imposed under section 16 (1) (n) of the Act was rightly set aside by the appellate authority and the Board of Revenue was justified in upholding the order passed by the appellate authority. Both the reference applications, being treated as revision petitions under section 15 (1) of the Rajasthan Sales Tax Act, as amended, are hereby dismissed as no question of law appears to arise out of the orders passed by the Board of Revenue. Petitions dismissed. .;