SWARNAMAHAL JEWELLERS Vs. INTELLIGENCE OFFICER

JUDGEMENT

(1.) THIS writ petition raises an interesting question regarding the scope of S. 45-A of the Kerala General Sales Tax Act (for short, the Act vis-a-vis the powers of an Intelligence Officer under the said Act. THIS question fell to be considered by Bhaskaran J. , in O. P. Nos 464 and 505 of 1976. The learned judge by his judgment dated 26-5-1978 held that the intelligence Officer was competent to pass an order under S. 45-A of the Act. After that judgment. Explanation II has been added to S. 45-A by S. 13 of Act 19 of 1980 with effect from 16-9-1980. The introduction of this Explanation has rendered the question complex. A similar question arose in another form in o. P. Nos. 822, 2096 and 2264 of 1976 before Chandrasekhara Menon J. The learned judge held that the power of imposing penalty under S. 45-A could be exercised only in the course of assessment and not otherwise, that S. 45-A cannot be projected back to an assessment year prior to its introduction in the statute book and that the term 'assessing authority' in S. 45-A of the Act would not include an Intelligence Officer but only the regular assessing authorities under the Act. In appeal, in the decision reported in Intelligence Officer, central Intelligence Squad, Agricultural Income-tax and Sales-tax Ernakulam v. Hotel Ambassador (45 S. T. C. 425), the finding that the powers under S. 45-A could be exercised only in the course of assessment was set aside. But the finding on the vice of retrospective operation was upheld. The detection of irregularity by the Intelligence Officer in that case took place prior to 26-10-1975 when S. 45-A was enacted. The Division Bench held that S. 45-A had no application to the facts of the case. The Division Bench noticed the definition of 'assessing authority' in S. 2 (iv) of the Act and referred to a notification, sro. No. 335 of 1963, but did not express itself on the question whether an intelligence Officer would be an assessing authority in view of the finding that S. 45-A did not apply to the facts of the case before. The submission made before me by the learned counsel for the petitioner in this petition is that the Intelligence Officer is not "the assessing authority" under s. 45-A, that he cannot exercise the powers under S. 45-A and that the question was left open by the Division Bench. It is this question that has to be answered in this judgment.

(2.) THE petitioner is a registered dealer in gold jewellery. On August 30, 1980, the Intelligence Officer, Trichur, who is the 1st respondent, went to the petitioner's shop along with a posse of his subordinates accompanied by the Deputy Superintendent of Police, Vigilance, and the Inspector of Police, Vigilance. THEre were a few slips on the table in the shop. THE petitioner represented that the slips related to unfinished stock-taking and did not represent any sales. THE officers seized the records after getting the petitioner to sign a statement prepared by the 1st respondent in his handwriting. THE petitioner requested for compounding the offence of non-maintenance of correct accounts. This request was turned down. THE 1st respondent issued Ext P2 notice on 22-10-1980 intimating the petitioner his proposal to levy penalty of Rs. 72,062/- under S. 45-A of the Act on the basis that the petitioner had committed an offence under S. 46 (2) (c) of the Act. He was called upon to show cause within 7 days why the penalty should not be imposed. THE petitioner sent a letter Ext. P3 on 1-11-1980 requesting the 1st respondent to return the seized records or at least to permit him to take a copy thereof. This request was repeated in Ext. P4 dated 11-11-1980. THE 1st respondent sent ext. P5 reply stating that the documents in question could not be returned. THE petitioner has therefore moved this Court praying to declare S. 28 and 45-A of the Act as unconstitutional, to quash Exts. P2 and Ext. P5 and for other reliefs.

(3.) THE submission that the powers under S. 45-A can be exercised only in the course of assessment and not de hors such assessment is now concluded by what the Division Bench said in 45 STC 425. But I think it necessary to refer to the submissions made by the petitioner's counsel on this aspect since the Division Bench has not considered this question in the manner in which it was presented before me. THE relevant discussion of the Division bench on this question is contained in Para. 5 of the judgment, which can be usefully read: "5. Regarding the first of the grounds stated by the learned judge, we are unable to agree that the imposition of a penalty can be done only in the course of assessment proceedings, as stated by the learned judge. THE learned judge seems to have overlooked S. 45-A, which we have already quoted. S. 19 of the Act provides for assessment of escaped turnover. Clause (1)of S. 19 is the section which provides for an escaped assessment; and clause (2) of the section enacts: "19. (2) In making an assessment under sub-section (1), the assessing authority may. If it is satisfied that the escape from assessment is due to wilful non-disclosure of assessable turnover by the dealer, direct the dealer to pay, in addition to the tax assessed under sub-section (1), a penalty as provided in S. 45a. Provided that no such penalty shall be imposed unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. Explanation. Notwithstanding anything contained in the indian Evidence Act, 1872, the burden of proving that the escape from assessment was not due to wilful nondisclosure of assessable turnover by the dealer shall be on the dealer. " This is only an enabling power which allows the assessing authority even while making a re-assessment of an escaped assessment to resort to the provisions of S. 45a and impose a penalty. That would afford no justification for linking S. 19 (2) with S. 45a, and holding that the latter section has no independent existence and can be resorted to only in the course of the assessment proceedings. A reading of S. 45a is sufficient to show that it is a separate and independent section and that irrespective of whether the assessment has been completed or not, it is open to the requisite authority to take action under the said section provided the conditions for action are satisfied. We, therefore, cannot support the first of the grounds given by the learned judge. " This judgment was rendered on July 31, 1979.