Full Judgment
G.C. Bharuka, J.
1. The present revision is directed against the order dated January 28, 1997 passed by the respondent-Additional Commissioner of Commercial Taxes, under suo motu revisional power conferred under section 22A(1) of the Karnataka Sales Tax Act, 1957 (in short, 'the Act').
2. The basic facts are not in dispute. The appellant is a registered dealer under the Act having its administrative office at Mission Road, Bangalore, and its factory is situated at Doddaballapur. It had purchased some electronic goods from M/s. OEMN Connectors Ltd., of Cochin, and the same was being carried from Cochin to Bangalore in a passenger bus. In the said process, after off-loading the same at Subhashnagar bus station at Bangalore, the employee of the firm proceeded to carry the said consignment to Doddaballapur in an autorickshaw. At that point of time it was intercepted by the mobile check-post authorities. On being asked the following documents were immediately produced for verification :
(i) Packing slip No. MKSV/91167/0032 dated September 7, 1992 of OEN Connectors Limited, Mulanthuruthy 682 312 in favour of M/s. WSI Electronics, Bangalore, for 575 connectors (1 case);
(ii) Central excise gate pass No. 2876 dated September 7, 1992 for the value of connectors at Rs. 79,580 plus duty of Rs. 12,728 issued by M/s. OEN Connectors Ltd;
(iii) Packing slip No. 1835 dated September 12, 1992 of M/s. OEN Connectors Ltd., Mulanthuruthy via Cochin issued in favour of M/s. WSI Electronics Ltd., Bangalore for having purchased 270 connectors (1 case);
(iv) Central Excise gate pass No. 2949 dated September 12, 1992 for the value of connectors of Rs. 12,587 plus duty of Rs. 2,102 issued by M/s. OEN Connectors Ltd., Kerala State.
3. Subsequently, the original papers supporting the said sale transactions were also produced, but still penalty of Rs. 11,190 was imposed under section 28A(4) of the Act, on the ground that the consignment was not accompanied by the statutory form No. 39 as prescribed under section 28A(2) read with rule 23B(1A) of the Rules. As it is evident from the original penalty order passed by the Assistant Commercial Tax Officer, In-charge of the check-post, the said penalty was imposed pursuant to the direction of Assistant Commissioner of Commercial Taxes (Check-post). Against the said order, the appellant went in appeal before the Deputy Commissioner of Commercial Taxes, who by his order dated January 22, 1997 set aside the penalty, inter alia, by holding that the genuineness of the transaction is not at all in dispute and nothing was brought on record to show that the assessee had any intention of evading the tax.
4. Subsequent to the said order, the Additional Commissioner took upon himself to initiate suo motu proceedings under section 22A(1) of the Act and after notice to the assessee, set aside the appellate order and restored the original penalty order by taking a view that since admittedly for the movement of the goods from Bangalore to Doddaballapur, no form No. 39 was used, therefore there was violation of statutory provisions.
5. We have heard the learned counsel for the appellant and Mrs. Sujatha, learned High Court Government Pleader, appearing on behalf of respondents, who had already taken notice earlier with an understanding that the present appeal will be disposed of at the stage of admission itself.
6. Considering the facts and circumstances as stated above, it has not been seriously disputed on behalf of the respondents that that goods have been moved from Cochin to Bangalore pursuant to the genuine sale transaction. But the objection raised is that since the movement was not supported with a statutory form 39, therefore, there is technical violation of law. In our opinion, even if it is so, the levy of penalty cannot be sustained, because for levying penalty even under the taxing statutes, it is incumbent upon the department to prove a guilty intention on the part of the assessee or taxpayers in not complying with the statutory requirements. The aforesaid aspect has been well-settled by the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa : [1972]83ITR26(SC) wherein it has been held that :
'.......An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances.'
7. For the said reasons, we find it difficult to sustain the impugned order which is accordingly set aside. The appeal thus is allowed, but without costs.
8. Appeal allowed.