P K RADHA Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioners are the legal heirs of late C. A. Krishnan. He was running a bar attached to hotel in the name and style of Palace En -paradise. There was a surprise inspection at the premises of the hotel by the Intelligence Officer, Squad II on January 13, 1993. Based on the inspection and enquiry by exhibit P1 order the Intelligence Officer imposed a penalty of Rs. 1,61,864 for the year 1992 -93 under section 45A(1)(b) of the Act. The petitioners preferred an appeal before the Deputy Commissioner. By exhibit P2 order dated April 29, 1995 the Deputy Commissioner modified the order and imposed a penalty of Rs. 81,000. On a further revision before the Board of Revenue the penalty with regard to the shortages came to be limited only to turnover tax at the rate of 200 per cent and regarding excess the penalty to the extent of sales tax plus turnover tax at the rate of 200 per cent amounting to Rs. 25,437.

(2.) THE main ground of challenge against these orders is that the authorities have not given specific reasons why the maximum penalty should be imposed. In this context he has referred to the decision of the Division Bench in Sudhi v. Intelligence Officer [1992] 85 STC 337 (Ker). Both the assessing officer as well as the first revisional authority has considered the question of quantum of penalty. The assessing officer has stated that the dealer failed to maintain true and complete accounts of his business for the year 1992 -93 with ulterior motive to evade the payment of tax due to Government, and imposed the penalty. He had also given reasons for coming to the conclusion about the ulterior motive of the petitioner. The first revisional authority, viz., the Deputy Commissioner, in his order, exhibit P2, considered the question of maximum penalty. It was pointed out that the Intelligence Officer had imposed the maximum penalty. Thereafter the officer went on to consider that under section 45A of the Act it is the duty of the assessee to prove that he had not evaded any payment of tax. The stock variation found in this case comes to Rs. 1,03,952 whereas, according to the petitioner, the value of excess stock comers to Rs. 18,593.18 for which alone he is liable to pay at 75 per cent. The Deputy Commissioner further found that from the records the petitioners had no proper explanation for the shortage noticed and therefore the contention of the petitioners was not acceptable. Considering these facts and circumstances he found that the penalty imposed by the Intelligence Officer is to be a bit excessive. Therefore he found the the penalty of Rs. 81,000 will be sufficient to meet the ends of justice. On a further revision before the Board of Revenue it was found that the revision applicant need pay tax only at the rate of 75 per cent on the value of excess stock detected. In those circumstances it was considered that the shortage can be limited only to turnover tax at the rate of 200 per cent and regarding excess the penalty to the extent of sales tax plus turnover tax at the rate of 200 per cent amounting to Rs. 25,437.