GENTLE JOSEPH AND CO Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is an assessee to sales tax under the Kerala General Sales Tax Act, 1963. It is a dealer in raw rubber, a commodity taxable at the last purchase point. On November 19, 1988, a consignment of rubber sheets sold by the assessee to one Thomas Joseph was intercepted and detained at Angamaly by the Sales Tax Intelligence Squad while the goods were on its way to M/s. Apollo Tyres, Perambra, near Chalakudy. THE goods were detained on the ground that the delivery note showed that the goods were sold to Thomas Joseph to be delivered at Apollo Tyres and the nature of the transaction by Thomas Joseph is not ascertainable. THE goods were released on November 21, 1988, on payment of Rs. 22,250 by way of security. THE enquiry officer converted the same into penalty. THE appellate authority confirmed the penalty imposed. THE Sales Tax Appellate Tribunal sustained that order and dismissed the second appeal preferred by the assessee. Hence the revision.

(2.) HEARD counsel for the petitioner Dr. K. B. Mohamedkutty and Senior Government Pleader Sri V. C. James for the Revenue.

(3.) WE were taken through the order of the Tribunal and the provisions of the Kerala General Sales Tax Act. Learned counsel for the petitioner has also placed considerable reliance on the decision of this Bench rendered in P. D. Sudhi v. Intelligence Officer, Agricultural Income-tax and Sales Tax [1992] 85 STC 337. Section 29a (4) of the Act enables the officer authorised under sub-section (3) of that section to serve a notice on the owner of the goods and give him an opportunity of being heard and after such enquiry the officer shall impose on the owner of the goods a penalty not exceeding twice the amount of tax attempted to be evaded in case the officer finds that there has been an attempt to evade the tax due under the Act. The Tribunal attempted to draw a distinction between the penalty provision contained in section 29a (4) and other provisions of the Act referring to sections 19 and 45a. Section 19 enables the assessing authority to direct the dealer to pay penalty if it is satisfied that the escape from assessment is due to wilful non-disclosure of assessable turnover by the dealer. Section 45a authorises the assessing authority or the Appellate Assistant Commissioner to direct payment of penalty on satisfaction of one or other of the grounds mentioned in clauses (a) to (f) of sub-section (1) of that section. An amount not exceeding twice the amount of sales tax or other amount evaded or sought to be evaded where it is practicable to quantify the evasion or an amount not exceeding five thousand rupees in any other case is leviable by way of penalty. On a reading of these provisions of the Act it is seen that section 29a (4) mentions about an attempt to evade the tax due under the Act whereas the other provisions refer to evasion of tax or contravention of any of the provisions of the Act. But that distinction is without any difference since what has to be established is evasion of tax.