IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WA.No. 254 of 2009() -------------------- AGAINST THE JUDGEMENT IN OP.5360/1999 Dated 13/12/2006 .................... APPELLANT(S): PETITIONER ------------------------ M/S.CHALISSERY SUPARI COMPANY, CHALISSERY, PALAKKAD DISTRICT REP. BY P.M. AYISHAKUTTY, PARTNER. BY ADV. SRI.JOSE JOSEPH RESPONDENT(S): RESPONDENTS -------------------------- 1. THE ASST.COMMISSIONER (ASSMT).II, SALES TAX OFFICE, SPECIAL CIRCLE, PALAKKAD. 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, PALAKKAD.(FORMERLY AGRL.INCOME TAX & SALES TAX, PALAKKAD) 3. THE COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM. 4. THE DEPUTY TAHSILDAR (RR) TALUK OFFICE, OTTAPPALAM. BY GOVT. PLEADER SRI.K.P.PRADEEP. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- W.A.No.254 of 2009 ------------------------------- Dated this the 19th February, 2009 J U D G M E N T Raman, J. This writ appeal is directed against the judgment dated 13.12.2006 in O.P.No.5360 of 2006. A provision was introduced in the Sales Tax Act by which tax is liable to be paid on last purchase of goods stock transferred outside the State and retained by the selling agents. This provision however was introduced from 19.2.1988. The assessment year in question is one year subsequent to the introduction of the said amendment. The aforesaid provision though was challenged by some other dealers, in which a conditional stay was granted by this Court, the appellant however did not chose to file any writ petition or to obtain a stay. As such, the appellant could not avail the benefit of the stay obtained by other dealers. At the time of filing the W.P.(C) No.254 of 2009 2 return, however, the petitioner did not include the turnover representing the last purchase of goods outside the State. When proceedings under Section 45A of the Kerala General Sales Tax Act was initiated, it was contended by the appellant that because of the stay of operation of the provision obtained by some other dealers, he was under the impression that the stock held by agents outside the State was not liable to tax and hence the same was not included in the turnover, until a finality is reached in the matter. This was not accepted by the Department and a penalty of double the amount of tax was imposed, against which a revision was filed. Though succeeded partly, dissatisfied with the same, the appellant filed writ petition which was also partly allowed granting him further relief on the quantum of penalty, but did not accept the larger contention that he is not liable to pay any penalty. Hence, this writ appeal. 2. The learned Single Judge considered the contentions raised by the petitioner, and found that the W.P.(C) No.254 of 2009 3 authorities were justified in imposing the penalty. When a provision is introduced making the turnover of last purchase of goods stock transferred outside the State and retained by the selling agents liable to tax, there was a liability on the petitioner to include the same in the turnover. Admittedly, he did not choose to challenge the said provision. The stay obtained by any other dealer could have perhaps helped the petitioner, provided there was a blanket stay of operation of the provision. But, in this case, the stay obtained by some other dealers was a conditional one. At any rate, such a stay could not have operated in favour of the petitioner. The provision itself was introduced one year earlier to the assessment year in question. In such circumstances, the learned Single Judge was perfectly justified in dismissing the writ petition. The quantum of penalty was fixed based on the figures from books of accounts maintained by the petitioner, and that there was no suppression of any of the transactions in the books of accounts. Therefore, the learned Single Judge reduced the penalty to one-fourth of the W.P.(C) No.254 of 2009 4 tax payable on the turnover. We do not find, in such circumstances, that the appellant is entitled for any other relief. We agree with the reasoning adopted by the learned Single Judge. The appeal accordingly fails and is dismissed. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.