IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WA.No. 2604 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.29765/2007 Dated 16/10/2007 .................... APPELLANT(S): PETITIONER ------------------------ R.LATHA, PROPRIETRIX, KALYAN READYMADES, ROUND SOUTH, TRISSUR DISTRICT, KERALA STATE. BY ADV. SRI.M.UNNIKRISHNA MENON SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): RESPONDENTS -------------------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE INTELLIGENCE OFFICER, SQUAD-I, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER(INTELLIGENCE), AGRICULTURAL INCOME TAX AND SALES TAX, CIVIL LANE, AYYANTHOL, TRISSUR. SRI.MOHAMMED RAFIQ, GP FOR RESPONDENTS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... Writ Appeal No.2604 of 2007 .................................................................... Dated this the 2nd day of June, 2009. JUDGMENT Ramachandran Nair, J. The Writ Appeal is filed against judgment of the learned Single Judge declining to interfere with challenge against penalty orders issued under Section 45A of the KGST Act for the reason that petitioner has effective statutory remedy by way of revision before the higher authority. Even though we do not find anything wrong with the view taken by the learned Single Judge, we do not think we are justified in dismissing the Writ Appeal on the same ground at this distance of time because this court admitted Writ Appeal and granted stay against recovery of penalty. Besides this, this is the second round of litigation after one round of remand by this court in the same matter. We have heard counsel for the appellant and Government Pleader on the merits of the case and we, therefore, proceed to decide the dispute i.e. appellant's challenge against Exts.P15 to P18 orders issued by the 2 Intelligence Officer of Sales Tax levying penalty on the appellant for the assessment years 1991-92 to 1994-95. 2. The appellant is a dealer in readymade garments at Trichur. During the assessment years 1991-92 to 1994-95 returns filed were accepted and assessments were completed. However, the Deputy Commissioner based on details collected from the Branches of Dhanalakshmi Bank and South Indian Bank located near petitioner's shop noticed that petitioner was engaged in unaccounted purchase of goods namely, readymade garments, from outside Kerala by purchasing Demand Drafts in the name of her employee by name Achuthan. He, therefore, set aside the assessments and remanded for revision of the same based on information collected about unaccounted purchase of goods through Demand Drafts taken in the name of an employee. However, the said orders were challenged in appeal and the Tribunal cancelled the orders. Even though the department did not file Revisions to this court against Tribunal's orders, the Intelligence 3 Officer(Investigation Branch) initiated penalty proceedings for evasion of tax under Section 45A of the KGST Act which led to levy of penalty at double the amount of tax. When these orders were challenged in first revision before the Deputy Commissioner, he confirmed the penalty orders but reduced the penalty to one and a half times the tax evaded. In second revision, the Commissioner confirmed the orders of the first revisional authority. The appellant challenged the said orders of the Commissioner before this court on the ground that Tribunal's orders relating to assessments were in favour of the appellant. Based on the contentions raised by the appellant, this court vide Ext.P13 judgment cancelled the orders of the Commissioner and remanded the matter for fresh consideration. Pursuant to the judgment, the Commissioner issued Ext.P14 order whereunder he remanded the matter to the Intelligence Officer for reconsideration after taking into account petitioner's contentions based on the Tribunal's order. Even after remand, the Intelligence Officer issued Exts.P15 to P18 orders 4 confirming penalty for evasion of tax under Section 45A of the KGST Act against which W.P.(C) No.29765/2007 was filed. Even though learned Single Judge did not decide the case on merits, both sides argued the case on merit before us and we, therefore, consider the sustainability of Exts.P15 to P18 penalty orders. 3. The first contention raised by counsel appearing for the petitioner is that Tribunal's orders pertaining to assessment are binding on the Commissioner as well as lower authorities while considering penalty and they have no authority to come to any finding different from what the Tribunal has held. Government Pleader on the other hand contended that both assessment and penalty proceedings are entirely different and the Tribunal's findings in assessment are not binding on the departmental authorities dealing with penalty case. He further pointed out that the department has not accepted the findings of the Tribunal and there was only an omission in filing revision petitions before the High Court against orders of the Tribunal. Counsel for the 5 petitioner has relied on decision of the Supreme Court in K.C. BUILDERS V. ASST. COMMISSIONER OF INCOME-TAX reported in 2004(1) KLT 596 and contended that once assessment is cancelled, subsequent orders on penalty and prosecution based on such assessments also are not tenable. On the face of it, the argument of the counsel for the petitioner is correct because if final fact finding authority like the Tribunal has rendered findings on facts and the department has accepted the same, then they cannot take a different stand in penalty proceedings pertaining to the same issue. However, the question to be considered is whether the failure of the department to file revision petitions against the orders of the Tribunal in assessment cases will bar the statutory authority from levying penalty, if there are sufficient materials justifying it. The Tribunal has no jurisdiction in penalty matters and the final statutory authority so far as penalty under Section 45A is considered, is the Commissioner of Commercial Taxes who is the second revisional authority enjoying also suo moto 6 revisional powers to correct orders of the first revisional authority. This court has in large number of cases held that penalty proceedings under Section 45A of the Act are independent proceedings and the same can be proceeded with even without waiting for completion of assessments. We are of the view that the failure of the department to file revisions against orders of the Tribunal will not stand in the way of statutory authorities considering penalty proceeding independently and if there is sufficient material to sustain the orders, this court has no authority to vacate such orders merely because Tribunal in parallel proceedings gave findings which if challenged, would not have been sustained by this court. Therefore, we have to necessarily consider whether Exts.P15 to P18 orders are sustainable based on the facts found therein or whether the findings entered by the Intelligence Officer are unsustainable because of the findings of the Tribunal in the appellate orders, copy of which is produced as Exts.P10 and P11 in writ proceedings. As already stated, the only material based on which 7 assessment was revised and penalty levied is the evidence collected by the department about purchase of D.Ds. by one of the employees of the appellant by name Achuthan in favour of outside suppliers of garments from local Branches of two Banks near to place of business of the appellant. The entire details of the D.Ds. purchased by appellant's employee in the name of outside Kerala suppliers of readymade garments are available in penalty orders and in the orders of assessment and orders of the Tribunal relied on by the appellant herself. Government Pleader read over the entire statements furnished by the employee who purchased the D.Ds. in the name of suppliers of readymade garments located outside Kerala. The inescapable conclusions from the evidence collected by the department and relied on by them in the assessment and penalty orders are the following: i) The Demand Drafts are admittedly purchased by the full time employee of the appellant by name Mr.Achuthan who has given confirmative statements about purchase of D.Ds. 8 ii) During the first year, in the course of around three months 30 D.Ds. were purchased which means that on an average every third day the employee went out of the shop for a few hours to purchase D.Ds. Even though appellant is denying purchase as made for her, appellant has no explanation why the employee was allowed to leave the shop during working hours on a regular basis for purchase of D.Ds. from Bank, if the same was not for the appellant. iii) The employee denies having done any business for himself or for any other party and though he admits purchase of the D.Ds., he has no explanation for the source of funds utilised for the purchase of D.Ds. and he refused to divulge whom for he did it. It is pertinent to note that he has given the care of address of the appellant's shop for purchase of D.Ds., in the Banks. iv) It is seen from the accounted purchases of the appellant from outside suppliers that some of the D.Ds. purchased by the employee were in the name of the same persons from whom appellant has regular 9 purchases. 4. The appellant has not put up any case that the very same employee namely, Mr.Achuthan who purchased large number of D.Ds. on a regular basis in the course of four years has done any service for any other party or has done any business for himself and the said employee also has no case in these lines. The appellant is engaged in business of readymade garments and the D.Ds. taken were all for suppliers outside Kerala who are engaged in sale of readymade garments and from some of whom appellant has accounted purchases as well. The only question now to be considered is, what is the reasonable inference possible from the above facts or whether any inference other than what is drawn by the department i.e. unaccounted purchase by appellant through D.Ds. purchased in the name of the employee, is possible. In our view, the only possible conclusion is that appellant by using the service of an employee, steadily purchased D.Ds. in the name of employee from Branches of the Banks located 10 nearby for making interstate purchases from outside State and made sales without accounting the same. We are of the view that if Tribunal's orders were challenged in revision before this court, those orders would not have been sustained. In penalty proceedings department is not bound by the inference drawn by the Tribunal in their appellate order. We notice from the Tribunal's orders relied on by the appellant that they have not given any finding that appellant was not engaged in unaccounted purchases. On the other hand all what they have said is that from the facts found by the Intelligence Officer, unaccounted purchase by appellant through purchase of D.D. in the name of employee is not possible. We are unable to uphold the finding of the Tribunal and we are sure that if Tribunal's orders were taken in revision before this court, those orders would not have been sustained by this court. Since unaccounted purchase of goods by the appellant from outside State by purchasing D.Ds. in the name of employee is the only irresistible conclusion possible from the facts 11 established by the department, penalty was rightly levied. Even though appellant submitted that penalty sustained at one and a half times the tax is high, we do not think any quantum relief is called for because for failure of the department to file revision against Tribunal's orders, appellant escaped from tax and interest liability which will be more than the penalty. The Writ Appeal is accordingly dismissed confirming Exts.P15 to P18 orders of penalty on merits. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms