IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 ST.Rev..No. 197 of 2009() ------------------------- TA.251/2006 of STAT ADDL.BENCH, KOTTAYAM .................... REVISION PETITIONER/RESPONDENT/REVENUE ---------------------------------------------------------- STATE OF KERALA, REPRESENTED BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY SPL. G.P. SRI.VINOD CHANDRAN RESPONDENT(S): APPELLANT/ASSESSEE --------------------------------- SRI.MATHEW POTHEN, ANASWARA COLOUR LAB, CHANGANACHERRY. ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE FOR R1 SRI.K.M.FIROZ FOR R1 THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 27/10/2009, ALONG WITH STRV NO.200 OF 2009, STRV NO.203 OF 2009 & STRV NO.208 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... S.T. Rev. No.197/2009 & C.M. Appl. No.1105/2009, S.T. Rev. No.200/2009 & C.M. Appl. No.1124/2009, S.T. Rev. No.203/2009 & C.M. Appl. No.1128/2009 & S.T. Rev.208/2009 & C.M. Appl. No.1160/2009 .................................................................... Dated this the 27th day of October, 2009. ORDER Ramachandran Nair, J. Heard the Special Government Pleader appearing for the revision petitioner-State and Senior counsel Dr.Mohammedkutty appearing for the respondent-assessee. The question raised in the departmental revision cases is whether assessee whose assessments were reopened and revised was rightly granted exemption from payment of mandatory penalty under Section 17(5A) of the KGST Act along with revised demand of tax for the assessment years 2000-2001 to 2002-2003. The assessee after purchasing photographic materials against issue of C Form, claimed bogus exemption. The original assessment was completed under Section 17(4) of the KGST Act. accepting the returns based on the statements and declarations filed by the assessee. In fact, in cases where the original assessments completed under Section 17(4) 2 are revised, penalty under Section 17(5A) is mandatory. However, in this case before levying mandatory penalty under Section 17(5A) along with revision of assessment, the Intelligence Officer had levied penalty under Section 45A of the KGST Act, which was modified and sustained by the Commissioner at equal amount of tax. When this penalty order modified by the Commissioner was challenged in S.T.A. Nos.8,9 and 10 of 2007, this court took into account the orders of the Tribunal directing revocation of penalty orders issued under Section 17 (5A) of the KGST Act and upheld the penalty levied by the Commissioner, without going into the contentions on merit. However, we made it very clear that in a case where tax is already paid by the assessee, penalty at equal amount of tax will be sufficient and on this basis, the penalty impugned in the S.T. Appeals abovereferred was sustained. Senior counsel appearing for the respondent now rightly pointed out that these revision cases are filed against the express condition and prohibition introduced by Division Bench of this court in the judgment in S.T.A. Nos.8,9 and 10 of 2007 dated 30.3.2009. Even though Special Government Pleader submitted that the course adopted 3 by the Tribunal in the impugned orders is not tenable, we find no substance in the contention because the purpose sought to be achieved by filing these revision petitions is to restore the penalty levied under Section 17(5A) which was found to be not tenable by us in the judgment abovereferred in assessee's own case while upholding penalty levied under Section 45A for the same years. Consequently consistent with the judgment in the appeals abovereferred, we dismiss the delay condonation petitions and the Tax Revision cases filed by the State. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms