PALLIMALIL RUBBER TRADERS Vs. STATE OF KERALA

JUDGEMENT

(1.) K. K. USHA Assessee is the revision petitioner. The matter arises in penalty proceedings under section 29a of the Kerala General Sales Tax Act, 1963. Relevant assessment year is 1985-86. On March 13, 1986, the assessee, the transporting 12,000 Kgs. of rubber in a lorry. On verification of the records, the Sales Tax Inspector attached to the sales tax check-post at Perumannoor (Ernakulam) found certain irregularities. Pursuant thereto, an enquiry was conducted and annexure A order was passed holding that the assessee attempted to evade payment of tax due under the Kerala General Sales Tax Act. An account of Rs. 24,696 was imposed as penalty on the revision petitioner under section 29a (4) of the Kerala General Sales Tax Act, 1963. Appeal filed by the assessee was dismissed by the Appellate Assistant Commissioner, Income-tax and Sales Tax under annexure B. On second appeal, Tribunal reduced the quantum of penalty by one-half of the amount imposed by the enquiry officer.

(2.) IT is contended by the assessee-revision petitioner that the Tribunal has committed an error in sustaining imposition of penalty after finding that the goods transported by the assessee was raw rubber which is taxable at the last purchase point within the State and assessee has subsequently produced from 25 declaration to prove that he was not the last purchaser in respect of that consignment. Reliance was placed by learned counsel for the revision petitioner on a Bench decision of this court in K. G. Thommen v. State of Kerala (1994) KLJ (TC) 477. In the above decision, this Court has held as follows : " Two things are fairly clear on a reading of section 29a (2) and section 29a (4) of the Act. They are : (1) the transport of the goods should be without proper and genuine documents and (2) of the officer should be satisfied that the person transporting the goods is attempting to evade payment of tax due under the Act. We are of the view that mere transport of the goods without proper documents may enable the officer to check and detain the goods. IT is open to the officer to make enquiries. But, in order to levy a penalty under section 29a (4) of the Act, the officer should positively find that there has been an attempt to evade tax due under the Act. The mere fact that the transport of goods was not accompanied by proper documents by itself will not be sufficient to attract levy of penalty under section 29 (A) of the Act. IT is essential that the officer should find that there has been an attempt to evade tax due under the Act and that should be based on proper material. "