K. RAJENDRAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is a dealer in building materials, such as cement, iron and steel, sanitary goods, etc. He is having registration under the Kerala General Sales Tax Act, 1963, hereinafter referred to as "the Act", and the Central Sales Tax Act, 1956 Second respondent conducted an inspection of the shop of the petitioner. Irregularities were noticed in the maintenance of the accounts. Petitioner was directed to produce his books of accounts and other documents for verification. Petitioner submitted his explanation and records, through his representative. Finding that the explanation is not acceptable, exhibit P4 notice dated July 31, 1990 was issued. Petitioner was told that he has committed an offence punishable under section 46(1)(c) of the Act, and that he is at liberty to get the same compounded departmentally under section 47 of the Act. Petitioner was not agreeable to the course suggested to have the offence compounded. Thereupon he was served with exhibit P6 notice under section 45A of the Act. Petitioner submitted his explanations. After considering the entire matter, second respondent issued exhibit P8 order imposing the penalty under section 45A of the Act. This order is under challenge.

(2.) THE learned counsel representing the petitioner raised two contentions, one, the second respondent initiated action under section 46(1)(c) of the Act by issuing exhibit P4 notice. Without exhausting the steps under section 46(1)(c), he was clearly in error in proceeding under section 45A of the Act. The second contention is that the second respondent did not apply his mind to the quantum of penalty to be imposed on the petitioner. The learned Government Pleader submitted that prosecution under section 46(1)(c) is independent of the proceedings under section 45A. The second respondent was justified in changing his intention to drop the proceedings under section 46(1)(c) and to proceed against the petitioner under section 45A of the Act. It is further submitted by him that second respondent had applied his mind to all relevant aspects while issuing exhibit P8 order. In that order he has categorically found that the petitioner maintained false accounts and hence liable to be penalised under section 45A of the Act. So, the order exhibit P8 is not open to challenge under article 226 of the Constitution. If the petitioner has got a case that the second respondent did not apply his mind to the quantum of penalty to be imposed, that aspect can be agitated before the revisional authorities. In this view, it is not necessary for this Court to interfere with exhibit P8.