IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 OP.No. 30681 of 2002(C) ----------------------- PETITIONER: ------------ M/S. DEEPA PLASTICS ANDE POLYMERS, PARAPOOKKARA, REPRESENTED BY ITS MANAGING PARTNER SRI. N.BHASKARAN BY ADV. SMT.S.K.DEVI RESPONDENTS: ------------- 1. THE ADDL. SALES TAX OFFICER-I, DEPARTMENT OF COMMERCIAL TAXES, IRINJALAKUDA. 2. THE DIRECTOR OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM 695033 3. THE DEPUTY TAHASILDAR (RR), MUKUNDAPURAM TALUK, IRINJALAKUDA 4. THE COMMISSIONER OF COMMERCIAL TAXES, VIKAS BHAVAN, THIRUVANANTHAPURAM BY GOVERNMENT PLEADER SRI. TEKCHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 51905 OF 2002 & 51881/02 & CMP 9946/03 IN CMP 51881/02 , ALL IN OP 30681 OF 2002 DISMISSED 25.1.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF VALUATION CERTIFICATED DATED 21.6.1997 EXT.P2 TRUE COPY OF COMMUNICATION NO. A5/37/2002 DATED 19.1.2002 ISSUED BY THE GENERAL MANAGER, DIC, TRICHUR. EXT.P3 TRUE COPY OF NOTICE NO. 25161466/96-97 DATED 15.11.2001 ISSUED BY THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF LETTER FILED BY PETITIONER. EXT.P5 TRUE COPY OF ORDER NO. ST RP 100/2002 DATED 3.8.2002 ISSUED BY THE DEPUTY COMMISSIONER, TRICHUR. EXT.P6 TRUE COPY OF ORDER NO. STRP 84/02 (R1-41688/02/CT) DATED 20.9.2002 ISSUED BY FOURTH RESPONDENT. EXT.P7 TRUE COPY OF HEARING NOTE NO. R1-41688/02/CT/STRP 84/2002 EXT.P8 TRUE COPY OF NOTICE DATED 26.7.2002 NO. FC-3/15537/2002 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 30681 OF 2002 -------------------------------------------- Dated this the 25th day of January, 2008 JUDGMENT The order under challenge is penalty levied for failure to submit audited accounts and for non-payment of tax along with monthly returns. Petitioner's case is that tax was not paid along with monthly returns as petitioner's application for sales tax exemption was pending. This Court vide judgment in W.P.C. 22517 of 2003 directed the District Level Committee to reconsider the petitioner's application for sales tax exemption. If petitioner is granted sales tax exemption for the period for which penalty is levied, then of course there is complete change of circumstances warranting reconsideration of penalty. It is to be found out whether petitioner has collected tax and failed to remit the same which will be disclosed in the invoices raised. This O.P. is therefore disposed of directing respondents to withhold recovery proceedings for recovery of penalty for three months from now. After District Level Committee's decision on exemption is received, the petitioner is given freedom to make application for rectification of 2 penalty before the assessing officer and assessing officer will, notwithstanding subsequent orders in revision modifying and refixing penalty, will reconsider penalty and pass fresh orders by taking into account fresh orders of the District Level Committee, and after verifying the collection of tax if any made by the petitioner and pass fresh orders which will substitute the present orders. However, even if the order of the District Level Committee is not in favour of the petitioner, in view of clearance of arrears of tax with interest, penalty should be refixed at 50% of the tax amount. (C.N. RAMACHANDRAN NAIR) Judge kk 3