PAUL VARGHESE Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) When section 17(5A) of the Kerala General Sales Tax Act specifically provides for penalty on failure to return the correct figures in a case covered by section 17(4) of the Act, whether levy of penalty again under "section 45A" of the Act would amount to "double jeopardy" and hence unconstitutional, is the moot point. The petitioner is a dealer in furniture and is an assessee on the rolls of the second respondent. The petitioner filed returns in respect of the assessment years 1998-99, 1999-2000 and 2000-01 opting for simplified procedure of assessment under section 17(4) of the Act and the assessment was completed accordingly. But subsequently, investigation conducted by the third respondent brought to light certain transactions involving the sale of goods by the petitioner to SIDCO in respect of the above three assessment years, which however did not find a place in the returns filed and the books of accounts. After confronting with the incriminating circumstances, the petitioner was mulcted with penalty under section 45A of the KGST Act to the tune of Rs. 1,25,452, Rs. 56,532 and Rs. 11,140 for the above three assessment years as borne by exhibits P1 to P3 orders respectively. Though the petitioner filed statutory revision petitions before the concerned authority, interference was declined and the revision petitions were dismissed as per exhibit P7 common order; aggrieved of which, a second revision petition was filed. Because of the coercive proceedings pursued in the meanwhile, the petitioner was constrained to approach this court by filing W.P. (C) No. 25144 of 2003, which was disposed of as per exhibit P10 judgment, directing to pass final orders in the revision petition preferred before the first respondent who in turn was directed also to consider whether imposition of punishment under section 45A would be justified, the petitioner having already been mulcted with the penalty of "thrice the tax amount" sought to be evaded under section 17(5A) of the KGST Act.

(2.) In the meanwhile, pursuant to exhibits P1 to P3 Orders passed by the third respondent, the second respondent re-opened the assessment for the years 1998-99, 1999-2000 under section 19(1) of the Act, fixing the tax liability accordingly. After approaching the first appellate authority, the petitioner approached the Tribunal as well, by way of second appeal, which led to exhibit P8 order dated September 18, 2003, whereby the Tribunal modified the assessment and the assessing authority was directed to re-fix the liability in terms of the said order, also directing to verify whether the assessee had taxable minimum for the year 2000-01.

(3.) Based on the reassessment proceedings originally pursued by the assessing authority pursuant to exhibits P1 to P3 order, the second respondent had found that the assessee was actually liable to pay an amount of Rs. 1,34,676 in respect of the year 1998-99, Rs. 65,238 in respect of the year 1999-2000 and Rs. 26,027 towards the year 2000-01 as per the orders passed under section 19. Based on the said figures, "penalty" was also simultaneously imposed under section 17(5A), making the assessee to satisfy "thrice" the amount of tax sought to be evaded, as mandatorily fixed under the statute, thus fixing the liability as Rs. 4,04,028 for the year 1998-99, Rs. 19,05,714 for the year 1999-2000 and Rs. 78,081 for the year 2000-01, vide exhibits P4 to P6 orders passed on April 16, 2003.