ZAKIR HUSSAIN Vs. ADDL STO

JUDGEMENT

(1.) THE petitioner is a dealer in Wet Grinders and Pump sets. He is a registered dealer under the provisions of the Kerala General sales tax Act. THE question in this writ petition relates to the levy of penalty under S. 45-A of the Kerala General Sales tax Act.

(2.) THE assessment year concerned is 1986-87. Ext. P1 is the order passed by the Additional Sales Tax Officer imposing penalty of rs. 47,000/ -. As against that, the petitioner filed a revision before the Deputy commissioner. Ext. P2 is the order passed by the Deputy Commissioner reducing the penalty of Rs. 23,500/ -. Being dissatisfied with the said order the petitioner filed a further revision before the Board of Revenue. By Ext. P3, board of Revenue confirmed Ext. P2. Ext. P3 order is challenged in this writ petition.

(3.) THE question is whether this unauthorised retention of collected tax payable to the State would amount to "evasion" contemplated under S. 45 A of the Act. Under S. 22 of the Kerala General Sales tax Act a registered dealer is legally authorised to collect the tax payable by him on the sale of any goods from the person to whom he sells the goods and pay over the same to the Government in the manner preeribed. As per the provisions contained in Kerala General Sales tax Rules the amount of tax so collected during a particular month shall be remitted to the Government Treasury before 20th of every succeeding month. So if the said tax is not remitted as required under the above rules, the assessee concerned becomes not only a 'defaulter' but also a Violator' of statutory provision. THE penal provisions contained in s. 45a is invoked in the present case since the petitioner has failed to submit the return as required by the provisions as per clause (c) of sub-section (1)thereof. THE delay in filing returns is consistently admitted. That means the failure to submit the return within the time preeribed by law is proved. THEn the delay is only a coneious 'default' and that is, no doubt in the present case is a concluded "evasion". THE essence of the provisions contained in S. 45a is punishment for 'evasion' or 'attempt at evasion' and the purpose is to prevent evasion. Anyone of the defaults in clause (a) to (g) will culminate in 'evasion' or 'attempt at evasion' and in both cases the levy of penalty is authorised as per the rate preeribed in the Section.