IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 OP.No. 38511 of 2001(I) ---------------------------------- PETITIONER(S): ---------------------- M/S. MUTHOOT HOTELS AND SHOPPING ARCADE, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM REP.BY THOMAS JOHN MUTHOOT- PARTNER. BY DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE RESPONDENT(S): ------------------------- 1. THE SALES TAX OFFICER (LUXURY TAXES), OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, MALLUR ROAD, THIRUVANANTHAPURAM. 2. the APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR V.K.SHAMSUDHEEN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.63211/2001 IN OP. NO.38511/2001 DISMISSED 07.08.2009 SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- ORDER NO.LT-102/2000-01 DTD. 3.3.01 OF THE IST RESPONDENT. P2:- COPY OF THE (SERIES) MONTHLY RETURNS IN FORM -I FROM APRIL, 2000 TO MARCH 2001 AND ANNUAL RETURN IN FORM -IA FOR 2000-01, FILED BY THE PETITIONER. P3:- COPY OF THE CHALAN DTD. 4.4.01 FOR LUXURY TAX FOR 4/2000 TO 3/2001, REMITTED BY THE PETITIONER. P4:- COPY OF THE APPELLATE ORDER IN STA 252/01 DTD. 22.8.01 OF THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE tss P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O.P No. 38511 of 2001 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 7th day of August, 2009 JUDGMENT The penalty imposed upon the petitioner in respect of the assessment year 2000 – '01 was subjected to challenge by filing appeal, which led to Ext.P4 order. The grievance of the petitioner is that, eventhough the finding was rendered by the appellate authority sustaining the contentions put forth by the petitioner/appellant holding that, the maximum penalty leviable can only be double the amount of tax, while remanding the matter directing the assessing authority to examine the case and modify the penalty, a direction was given to impose the penalty at double the rate of tax sought to be evaded for the months in question. To put it more clear, justifiability/sustainability of the appropriate extent of penalty to be imposed is not seen appreciated by the appellate authority while passing Ext.P4. Though the law provides for imposition of the maximum penalty to the above extent, whether every case should involve the imposition of penalty at 'double the rate of tax' is a matter to be looked into and considered on the basis of the facts and circumstances of each case. 2. In the said circumstances while sustaining Ext.P4 order remanding the matter to the assessing authority directing to pass OP No. 38511 of 2001 : 2 : modified order imposing the penalty, the question whether the instant case should also attract the extent of penalty is also left open. Since the matter is pending for quite long, the assessing authority shall pass final orders as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The original petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd