IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S. SIRI JAGAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 30920 of 2011(L) ------------------------------------- PETITIONER(S): ---------------------- A.SALIM, A.S.RUBBER TRADERS, EXCHANGE ROAD, KADAKKAL, KOLLAM. BY ADVS. SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S): ------------------------ 1. THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, KOLLAM AT KOTTARAKKARA-691 306. 2. THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, KOLLAM-691 021. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KOTTARAKKARA-691 306. R1 TO R3 BY GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS W.P.(C) NO. 30920 OF 2011 (L) APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- COPY OF THE LETTER RECEIVED FROM THE STATE BANK OF TRAVANCORE, KADAKKAL BRANCH, DATED 8.8.2011. EXHIBIT P2- COPY OF THE LETTER RECEIVED FROM THE STATE BANK OF INDIA, ANCHAL BRANCH, DATED 23.8.2011. EXHIBIT P3- COPY OF THE JUDGEMENT IN WP(C) NO. 25110/2011 DATED 22.9.2011. EXHIBIT P4- COPY OF THE PENALTY NOTICE UNDER SECTION 67 OF THE KVAT ACT ISSUED BY IST RESPONDENT FOR THE MONTH OF AUGUST 2011 DATED 22.9.2011. EXHIBIT P5- COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 8.10.2011. EXHIBIT P6- COPY OF THE PENALTY ORDER ALONG WITH POSTAL COVER PASSED BY IST RESPONDENT FOR THE MONTH OF AUGUST 2011-12 DATED 10.10.2011. EXHIBIT P7- COPY OF THE PENALTY ORDER PASSED BY IST RESPONDENT FOR THE MONTH OF JULY 2011-12 DATED 16.9.2011. EXHIBIT P8- COPY OF THE PENALTY ORDER PASSED BY IST RESPONDENT FOR THE MONTH OF SEPTEMBER 2011-12 DATED 19.10.2011. EXHIBIT P9- COPY OF THE CIRCULAR NO.6/2004 DATED 17.3.2004. EXHIBIT P10- COPY OF THE JUDGEMENT IN WPC NO.27283/2011 DATED 10.11.2011. EXHIBIT P11- COPY OF THE DEMAND NOTICE IN FORM NO.12 ISSUED BY IST RESPONDENT FOR THE MONTH OF AUGUST 2011 DATED 15.10.2011. RESPONDENTS' EXHIBITS:- NIL /TRUE COPY/ P.A. TO JUDGE DCS S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.30920 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2011 J U D G M E N T The petitioner challenges Ext.P6 order imposing penalty on the petitioner under the Kerala Value Added Tax Act. For entertaining this writ petition bypassing the alternate remedy by way of appeal available to the petitioner, petitioner would contend that the impugned order was passed without affording an opportunity of being heard to the petitioner. He would also contend that under Section 67 of the Act, the maximum penalty that could be imposed for non-filing of return is Rs.10,000/-, whereas by the impugned order, an amount of Rs.17,21,988/- has been imposed, which is without jurisdiction. 2. The learned Government Pleader would contend that both the contentions are wrong. She points out that in Ext.P4 notice, the petitioner has been specifically offered an opportunity of being heard and that such opportunity has W.P.(C)No.30920 of 2011 -2- been upheld by a Division Bench of this Court in W.A. No.1370/2011 as sufficient opportunity of being heard unless the party asks for a further hearing. It is further pointed out that the contention that the maximum penalty is Rs.10,000/- is wrong, since as per Section 67 the maximum of Rs.10,000/- penalty is imposed only in cases where it is not practical to quantify the evasion, whereas in this case, the evasion has been quantified and therefore double the tax sought to be evaded is imposed as penalty. 3. I have considered the rival contentions in detail. 4. In view of the decision of the Division Bench in W.A. No.1370/2011, and the opportunity of hearing offered to the petitioner by Ext.P4, the petitioner cannot now contend that the order has been passed without affording an opportunity of being heard to the petitioner. Regarding the second contention also, I am not inclined to accept the contention of the petitioner, since the authority has found that he has attempted to evade tax and double the tax sought to be evaded was imposed as penalty. The question W.P.(C)No.30920 of 2011 -3- as to whether it is practical to quantify the evasion or not is a question of fact. Insofar as in Ext.P6 the authority had quantified the tax attempted to be evaded, I am of opinion that the petitioner's remedy lies in challenging the said order in appeal. Therefore, without prejudice to that right, this writ petition is dismissed. To enable the petitioner to file appeal and seek interim orders, I direct that, for two weeks the revenue recovery proceedings for recovery of the disputed penalty shall be kept in abeyance. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/