IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 990 of 2005(P) ------------------------ PETITIONER: ------------ T.P.ANTONY, THOPPIL HOUSE, EDAPPALLY NORTH. BY ADV. SMT.S.K.DEVI SMT.DEEPSUR D.JAYAN RESPONDENTS: ------------- 1. THE ADDL. SALES TAX OFFICER-II, DEPT. OF COMMERCIAL TAXES, II CIRCLE, MATTANCHERY. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY SHRI.TEKCHAND, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.990/2005 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF CHALAN NO.20/5-2-02. P2 : COPY OF CHALAN NO.4/31-3-02. P3 : COPY OF CHALAN NO.58/25-9-02. P4 : COPY OF CHALAN NO.73/21-10-02. P5 : COPY OF CHALAN NO.17/5-2-03. P6 : COPY OF ORDER NO.1587/97-98 DATED 14/08/02 ISSUED BY R1. P7 : COPY OF ORDER NO.A1-1587/98-99 DATED 14/08/02 ISSUED BYR 1. P8 : COPY OF ORDER NO.STRP 162/02 DATED 29/04/03. P9 : COPY OF ORDER NO.R1-32895/03/CT/(STRP 159/03 DATED 31/08/04). P10 : COPY OF STATEMENT SHOWING THE PAYMENT OF DETAILS. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ---------------------- WP(C) No. 990 of 2005 ------------------------------------ Dated, this the 5th day of June, 2008 J U D G M E N T Petitioner is challenging Ext.P9 order whereunder the Commissioner has re-fixed the penalty levied on petitioner under Section 45A at 1½ times of tax on turn over tax evaded for the year 1998-99. Petitioner, who was a dealer in Indian Made Foreign Liquor, filed return without disclosing full turn over. However, Form 50B statement of accounts filed by the petitioner shows the difference between returned figure and the actual figure, on which tax is paid. It is seen that petitioner has filed revised return. However, turn over tax was not paid along with the revised return and it was in fact paid in instalments. Learned counsel contended that part of the amount was paid in time and balance only was remitted in instalments. He also pointed out that interest is also paid for the belated payment as is seen from the assessment order. Petitioner’s case is that there is no evasion on turnover tax and consequently penalty is not payable. However, I do not think petitioner’s claim can be accepted. But for the verification of WP(C) No.990/2005 -2- accounts by the Officer and detection of evasion, petitioner would not have probably filed revised return and paid the turnover tax. Petitioner also has not explained why turnover tax was not paid along with the revised return on substantial amount. Only when scrutiny was completed by the Officer, petitioner produced the accounts. The records show that only on issuing notice proposing finalisation of assessment by the officer, petitioner produced the accounts and offered to pay the tax that too in instalments. Therefore, levy of penalty confirmed in revision is upheld in principle. However, I feel penalty refixed at 1 ½ times of turn over tax is on the high side, if petitioner has paid interest without contest in terms of the assessment order. Therefore, the writ petition is disposed of refixing the penalty at equal amount of turnover tax as against 1½ times fixed by the Commissioner, provided petitioner paid interest from the due date of payment along with monthly returns till date of remittance. This matter requires adjudication by the Officer and if he finds that petitioner paid interest as above on belated payment of turn over tax, he will recover the penalty only at equal amount of tax as against 1½ times refixed by the Commissioner. However, if petitioner contests interest, or has not WP(C) No.990/2005 -3- remitted the same, then the penalty refixed by the Commissioner at 1½ times of turnover tax will stand confirmed. WP(C) is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg