VIJAYA OIL MILLS Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an appeal filed by an assessee from an order passed under S. 23 (3) of the Kerala General Sales-tax Act, 15 of 1963, for short, the Kerala Act, imposing a penalty of Rs. 20,386. 24 for non-payment of tax in due time. The order was passed by the Assistant Commissioner, Alleppey, the correctness of it was challenged in revision before the Deputy commissioner, Quilon. He set aside that order and remitted the proceeding to the Assistant Commissioner. The Board of Revenue took up the matter in revision suo mote. It restored the order of the Assistant Commissioner. The correctness of that is challenged here.

(2.) THE assessee is a firm dealing in copra and other declared goods. For the assessment year 1966-67 it paid Rs. 2,42,339. 56 upto 20-4-1967 towards sales-tax under the Central Sales-tax Act, 74 of 1956, for short, the Central Act. For the same assessment year under the Kerala Act assessment was made by the department on 31-12-1968 and notice was issued to the assessee demanding payment on or before 7-5-1969 of Rs. 2,14,591. 87 towards sale-tax and Rs, 98. 20 towards sur-charge. On receipt of notice the assessee sent a letter on 25-4-1969 to the department informing it that more than what was demanded in the notice had really been paid even long before and requesting that that amount may either be refunded or at least adjusted towards the demand made under the Kerala Act. No reply was sent to that letter. On 16-2-1970 the department made an assessment for the same period under the Central Act. THE tax found due under that Act was Rs 10 407. 17 As the amount deposited by the firm up to 20-4-1967 was really in excess by Rs. 2,31,932. 39 (Rs. 2,42,339. 56-10,407. 17) that was directed to be refunded to the assessee. It was accordingly withdrawn by the assessee on 10-3-1970. THEreafter the assessee deposited on 31-3-1970 the amount of Rs. 2,14,690. 07 (2,14,591. 8 plus 98. 20)demanded under the Kerala Act. On 7-5-1970 on the allegation that the assessee had not paid in due time the Salestax and sur-charge demanded under the Kerala act notice was issued by the Assistant Commissioner for imposition of penalty. To that reply was sent, ft was in that proceeding that the penalty already referred to was imposed.

(3.) REFUND was ordered on 16-2-1970 on account of the amount already deposited by the assessee up till 20-4-1967 being in excess by rs. 2,31,932. 39. That was also far in excess of the amount found by the same officer to be due as tax under the Kerala Act for the same period. The entire excess amount of Rs. 2,31,932. 39 was in the possession of the same authority to whom the payment had to be made when the two assessment orders were passed.