1980 (1) TMI 181 - HC - VAT and Sales Tax

Summary

Issues:
1. Challenge to exhibit P-1 order dated 30th March, 1977, and exhibit P-3 order dated 9th August, 1977.
2. Imposition of penalty for non-payment of tax post final assessment without a show cause notice.
3. Interpretation of section 23(3) of the Kerala General Sales Tax Act, 1963.
4. Merger of provisional assessment into final assessment and liability for penalty.
5. Compliance with principles of natural justice in penalty imposition.
6. Accrual of penalty despite absence of mens rea or wilful default.
7. Effect of interim stay on accrual of interest or penalty.

Analysis:

The petitioner contested the exhibit P-1 order imposing penalty for non-payment of tax post final assessment without a show cause notice. The petitioner argued that no penalty could be imposed after the completion of final assessment and that penalty imposition must follow a show cause notice. The petitioner claimed that the provisional assessment merged into the final assessment, and any penalty for non-payment of tax as per the provisional assessment was not recoverable post final assessment without considering it during adjustment. The counsel emphasized the need for compliance with natural justice in penalty imposition and challenged a previous court decision regarding penalty imposition.

The court examined section 23 of the Act, emphasizing that the liability for penalty is independent of the tax payable by the assessee. Rule 20 allows adjustment after final assessment, ensuring that any balance amount due from the assessee is notified for payment. The court clarified that even after final assessment and adjustment under rule 20, the liability for penalty remains enforceable, rejecting the argument that the provisional assessment merges into the final assessment, making the penalty irrecoverable post-adjustment.

Regarding the imposition of penalty without mens rea or wilful default, the court cited a previous decision stating that section 23(3) imposes an absolute liability on the assessee for penalty, excluding the application of natural justice rules. The court emphasized that the liability for penalty is automatic upon failure to pay the assessed amount within the specified time, regardless of the mental element.

The court dismissed the petitioner's arguments against the penalty imposition, noting that the interim stay did not prevent the accrual of interest or penalty but only restricted their recovery. With the dismissal of the stay order, the accrued interest became recoverable as per the statute. Ultimately, the court dismissed the petition challenging the penalty orders, emphasizing the enforceability of penalty liabilities post final assessment and rejecting the arguments against penalty imposition.