Prakash Tatia, J. - (1.) - Heard learned counsel for the petitioners.
(2.) The case has chequered history inasmuch as in proceedings under Section 78(5) of the Rajasthan Sales Tax Act, the assessing authority vide order dated 19th Dec., 1995 held that in planned way, the assessee purchased 560 tin of the "Shakti" brand Deshi Ghee with weight of 8400 kg @ Rs. 1400/- per tone with total value of the good Rs. 7,84,000/- through inter-State sale. The concerned authority found that all the documents are fake one and, therefore, the act of the assessee is in violation of Section 78(2). The assessing authority thereafter, imposed the penalty @ 30% to the value of the goods amounting to Rs. 2,35,200/-. The said order dated 19th Dec., 1995 was challenged by preferring appeal before the Dy. Commissioner (Appeals), Commercial Taxes, Udaipur, who dismissed the appeal of the petitioner vide order date 24th Oct., 1997. The assessee preferred further appeal before the Rajasthan Tax Board, Ajmer, which was registered as Appeal No.161/95/Udaipur. The said appeal was also dismissed by the Tax Board vide order dated 8th July, 2002. Then the assessee preferred revision petition before this Court being SB Civil Sales Tax Revision Petition No.1238/2002. The said revision petition was disposed of by this Court vide order dated 25.8.2004 by following the judgment of this Court delivered in the case of ACTO, Jodhpur v. M/s. Shiv Shambhu Agencies, S.B. Sales Tax Revision No. 778 of 2002 decided on 14.10.2003 . The matter was remanded to the Tax Board for fresh decision in terms of law laid down by this Court in the aforesaid judgment of Shiv Shambhu Agencies (supra). Thereafter, the Tax Board vide impugned order dated 28.2.2005 (Annex.1) again dismissed the appeal of the assessee, hence, this revision petition has been preferred.
(3.) There were difference of opinion in the judgments of Tax Board as well as in the judgment of this Court on the question whether the plea of mensrea is relevant in the matter falling under Section 78(5) of the Rajasthan Sales Tax Act. The said controversy has been settled by the Hon'ble Apex Court in the judgment delivered in M/s. Guljag Industries v. Commercial Taxes Officer, reported in (2007) 7 SCC 269 and it has been held that the question of mensrea is irrelevant. The Tax Board in impugned order held that in this case, even mensrea in committing the offence of evasion of tax is fully proved from the facts. As stated above, the penalty could have been imposed even without prof of mensrea of the assessee on finding the cases covered under Section 78(2) and 78(5) of the Act.;