2009 (9) TMI 905 - HC - VAT and Sales Tax

Whether the Tribunal was justified in sustaining the penalty levied under section 30B(4) of the Kerala General Sales Tax Act, 1963 on the petitioner? Held that - Incorporation of sub-clause(3) in sub-clause (4) is only to avoid repetition of all the words used in sub-clause (3) for the purpose of assessment and demand of tax and penalty under clause (4). In fact, what is clear from clause (3) is that subject to the ceiling on penalty provided thereto and the mandatory tax on turnover of goods even below the taxable limit, all the provisions of the Act with regard to the assessment and levy of penalty are applicable. Therefore, we uphold the finding of the Tribunal that an order under section 30B(4) read with sub-section (3) should always be passed with penalty, whatever be the quantum which is a matter of discretion depending on the facts and circumstances to be considered by the adjudicating officer. However, considering the fact that the petitioner fairly conceded the tax liability and since the tax is also paid, we modify the Tribunal s order by limiting the penalty to an amount equal to the tax levied and confirmed by the Tribunal.

Summary

Issues:
1. Interpretation of penalty provision under section 30B(4) of the Kerala General Sales Tax Act, 1963.

Analysis:
The judgment delivered by the Kerala High Court revolves around the interpretation of the penalty provision under section 30B(4) of the Kerala General Sales Tax Act, 1963. The case involved a timber merchant who owned trucks transporting timber to dealers in Kerala. The Department, based on discrepancies in declarations, issued a notice proposing to levy tax and penalty under section 30B(4) of the KGST Act. The petitioner contested the penalty, arguing that sub-section (4) does not explicitly provide for a penalty, only for the levy of tax. The Government Pleader contended that penalty is inherent in the assessment and recovery process outlined in sub-section (3) and is mandatory when incorporated in sub-section (4).

The court delved into the relevant subsections of section 30B of the KGST Act to resolve the controversy. Sub-section (3) empowers the levy of tax and penalty on a person when a presumption of local sale arises under sub-section (2) during the transport of goods through the State. It clarifies that tax, irrespective of turnover, can be assessed with a penalty not exceeding twice the tax amount. The court emphasized that the Act's provisions and Rules govern tax assessment and penalty imposition, with discretion limited to the penalty amount (up to twice the tax).

Sub-section (4) covers cases where goods are transported under false declarations or to non-existent entities, making the transporter and involved parties jointly liable for tax on such sales. The court highlighted that sub-section (4) mandates the levy of tax and penalty in the same manner as sub-section (3). It reasoned that the legislative intent did not differentiate between penalties for transporters failing to surrender transit passes and those involved in transporting goods under false pretenses. Therefore, the court upheld the Tribunal's decision that penalty is integral to orders under section 30B(4) read with sub-section (3), with the penalty amount subject to the adjudicating officer's discretion.

While affirming the Tribunal's decision, the court modified the penalty to be equal to the tax amount, considering the petitioner's acknowledgment of tax liability and payment. This comprehensive analysis clarifies the application of penalty provisions under section 30B(4) of the KGST Act, ensuring uniformity in tax assessment and penalty imposition for different scenarios involving the transport of goods through the State.