Kerala High Court
Sree Krishna Metal Industries vs State Of Kerala on 29 January, 2015
Author: Antony Dominic
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939
O.T.Rev.No. 179 of 2017
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AGAINST THE ORDER IN CT 23399/2014 of COMMR. OF COMMERCIAL TAXES,
TRIVANDRUM DATED 29.1.2015
REVISION PETITIONERS/ASSESSEE:
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SREE KRISHNA METAL INDUSTRIES,
KANNADIPPARA,
ATTENGANUM.P.O,
KASARAGOD DISTRICT.
BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM)
SRI.M.RAJAGOPAL
RESPONDENT/RESPONDENT/REVENUE:
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STATE OF KERALA,
REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES,
TAX TOWERS,KARAMANA,
THIRUVANANTHAPURAM-695 002.
R BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION
ON 24-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ANTONY DOMINIC, J. & DAMA SESHADRI NAIDU, J.
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O.T.Rev.No.179 of 2017
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Dated this the 24th day of October, 2017
JUDGMENT
Antony Dominic, J.
This revision is filed by the assessee impugning the orders passed and confirmed by the revisional authorities levying on him penalty under Section 67 of the Kerala Value Added Tax Act. The assessee is a dealer, running a metal crusher unit. For the assessment years 2012-2013, the assessee had opted for compounding declaring one metal crusher machinery and on that basis, obtained permission for payment of tax under Section 8 of the Act. This permission was granted by Annexure I order dated 30.6.2012. Subsequently, an inspection was conducted in the premises of the assessee on 6.10.2012, which revealed the existence of another machinery. Still later, on 8.12.12, the assessee applied for compounding in respect of the second machinery. Following the inspection conducted by the officer, proceedings for O.T.Rev.No.179 of 2017 : 2 :
levy of penalty under Section 67 of the Act were initiated and, accordingly, penalty was levied at double the amount of tax. It is impugning this order, which was confirmed by the revisional authorities, this revision is filed.
2. Heard the counsel for the assessee and the learned Government Pleader.
3. According to the learned counsel for the assessee, the assessee having so granted permission in respect of one machinery, the turnover in respect of that machinery could not form part of the proceedings for levy of penalty under Section 67 of the Act. This contention was contradicted by the learned Government Pleader.
According to the learned Government Pleader, on the deduction of the second undeclared premises of the dealer, the return filed by the dealer has become an erroneous one. Therefore, the dealer deserves to be visited with penalty. He also justified the turnover as estimated by the Assessing Officer.
O.T.Rev.No.179 of 2017
: 3 :
4. Considering the rival submissions made, we are inclined to agree with the learned Government Pleader. As we have already stated, though the assessee had obtained permission for payment of tax at compounded rates as provided under Section 8 of the KVAT Act, such permission was obtained by making a declaration regarding one of the machineries alone. The second machinery came to the light only following the inspection that was conducted on 6.10.12 and it was thereafter that the assessee opted to apply for compounding in respect of that machinery, vide his application dated 8.12.2012. This means that the return declaring only one of the machineries on the basis of which the assessee had obtained permission for compounding itself was an untrue one and thereby the permission that he obtained for payment of tax, a contract between the parties was one obtained by fraud. If that be so, the permission granted or obtained by the assessee for payment of tax under Section 8 of the Act in respect of one of the machineries, O.T.Rev.No.179 of 2017 : 4 :
would not assist him to contend that turnover of that machinery has to be excluded in Section 67 proceedings. If that be so, levy of penalty under Section 67 of the Act was the inevitable consequence. In such circumstances, we cannot find fault with the officer in having estimated the turnover in the manner it has been done. Therefore, we do not find any illegality in the orders impugned. However, it is clarified that it would be open to the assessee to seek recalculation of dues on the basis of the tax already paid under Section 8 of the Act.
Revision petition fails and it is dismissed.
sd/-
ANTONY DOMINIC JUDGE sd/-
DAMA SESHADRI NAIDU JUDGE jes