IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 16954 of 2008(R) -------------------------- PETITIONER: ------------ K.K.SUNILKUMAR, PROPRIETOR, AJITHA METAL TRADERS, MATHER BAZAR KOCHI-682031 BY ADV. SRI.SHAJI P.CHALY SRI.PREMJIT NAGENDRAN SMT.K.B.SUBHAGAMANI RESPONDENTS: ------------- 1. THE ADDL.SALES TAX OFFICER, II CIRCLE, ERNAKULAM 2. THE COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 16954 OF 2008 R ```````````````````````````````````````````````````` Dated this the 16th day of June, 2008 J U D G M E N T Case of the petitioner in brief is as follows. Original assessment against the petitioner is completed under section 17(4) of the KGST Act. Thereafter, detecting suppression, the assessments were revised under section 19 of the Act for the assessment years 1995-96, 1996-97 and 1997-98. On the basis of the same, acting under section 17(5A) penalty was imposed at three times of the rate of tax assessed. This is covered by Exts.P1 to P5 orders. The Deputy Commissioner in revision interfered with the order of penalty. The 2nd respondent acting under section 37 of the Act has proposed to interfere with the order of the Deputy Commissioner feeling that the order is prejudicial to revenue. Accordingly, after issuing notice Ext.P10 order was passed. By Ext.P10 order, the 2nd respondent set aside the order of the Deputy Commissioner and restored the order of the Sales Tax Officer. WPC.16954/08 : 2 : 2. I heard the learned Government Pleader also. The learned counsel for the petitioner points out Exts.P11 and P12. Ext.P11 is an order passed by the appellate authority in the appeal filed against the revised assessment order for the year 1997-98. Ext.P12 is the order passed by the appellate authority in respect of the assessment year 1995-96. In the said orders, which apparently have become final, the appellate authority has granted some relief in the amount of tax. In such circumstances, it is submitted that the amount of tax should have been only the amount which should be quantified in terms of Exts.P11 and P12 orders. Exts.P6, P7 and P8 are orders passed by the assessing authority modifying the earlier orders of assessment following the orders passed by the appellate authority. Having regard to the said facts, I think that the Commissioner erred in restoring the original order of the assessing authority. Accordingly, the writ petition is disposed of as follows. 3. Ext.P10 is quashed to the extent only that orders of WPC.16954/08 : 3 : the Sales Tax Officer is to be restored. I sustain Ext.P10 in regard to the rejection of the objection of the petitioner for invoking section 17(5A). There will be a direction to the 1st respondent to recompute the penalty under section 17(5A) on the basis of Exts.P6, P7 and P8. The learned counsel for the petitioner then submits that he is seeking the benefit of the Amnesty Scheme. Orders by the 1st respondent as aforesaid should be passed within ten days from the date of receipt of a copy of this judgment. (K.M.JOSEPH, JUDGE) aks