K KUNHI AHMED HAJI Vs. INTELLIGENCE OFFICER

JUDGEMENT

(1.) THE petitioner is stated to be a dealer in Copra. In and by Ext. P3 order dated 30-11-1976 the 1st respondent-Intelligence Officer, agricultural Income Tax and Sales Tax, Kasaragod levied a penalty of Rs. 3905/ 70 which represented half the value of the copra found to have been not accounted for. Aggrieved by ext P3, a revision was filed; and that is seen to have been disposed of by Ext. P6 order dated 3-7-1979 by the 3rd respondent, the Board of Revenue (Taxes), Trivandrum.

(2.) SRI. P. A. Mohammed (T), the counsel for the petitioner, submitted that S. 28 (8) of the Kerala General Sales Tax Act, 1963 (the 'act'), is ultra vires the Constitution inasmuch as the maximum penalty that the assessing authority was empowered to levy had been fixed at half the value of the goods not accounted for by the assesse e. S. 28 (8)of the Act reads as follows : "28. Power to order production of accounts and powers of entry, inspection etc. xx xx xx xx xx xx (8) If any officer, while inspecting any place of business under sub-s. (2) or searching any place under sub s. (3), finds therein any goods not accounted for by the dealer in his accounts and other records required under S. 27 to be kept and maintained by him, such officer may, after giving the dealer a reasonable opportunity of being heard, by order, direct the payment of a penalty, not exceeding fifty percent of the value of the goods not accounted for, as may be fixed by such officer. &quot

(3.) SOME decisions of the Rajasthan and Madras High Courts and one decision of the Supreme Court have been cited before us to press the contention that before tax is levied, penalty could not be imposed. They were ail cases where the penalty leviable was related to the tax that was imposable or imposed. In such cases it is only natural that before taxable event is identified and quantum of lax determined, the penalty could not be levied. That is not the position under S. 28 (8) of the act; to fix the penalty in terms of this provision at certain percentage of the value of the goods not accounted for by the assessee , determination of the tax is not only not a condition precedent, but also is not even a relevant factor.