2009 (8) TMI 1113 - HC - VAT and Sales Tax

Penalty on the petitioner under section 45A of the Kerala General Sales Tax Act, 1963 challenged Held that - A reading of exhibit P13 order itself shows that the aforesaid six documents, both original and forged, have been attached as annexure D only as samples of such originals as well as forged export documents as specimens testifying the fraud . If these documents are only specimens and samples, the petitioner cannot contend that the respondents have completed the penalty proceedings adopting sampling method. In fact, during the hearing of the case, the learned Government Pleader produced a file containing all the 137 export bills produced by the petitioner and the corresponding export bills obtained from the ports, all of which showed that the export bills produced by the petitioner contained forged signature of the port officer and that the goods mentioned in the originals were not HSD, but provisions, rice, etc. In this context the fact that it was burden of the petitioner to prove that the entire quantity has been shipped and therefore they are not liable for the penalty also cannot be forgotten. In this factual situation, contention is only to be rejected. In this case, it is the mere commission of an offence that has been committed by the petitioner. Penalty confirmed. Appeal dismissed.

Summary

Issues Involved:
1. Premature levy of penalty without tax assessment.
2. Specific provision of Section 45A not mentioned in the show-cause notice.
3. Non-disclosure of investigation report and relied documents.
4. Penalty imposed on entire quantity sold based on a few forged documents.
5. Seller's liability for subsequent misdeeds of the purchaser.
6. Findings in penalty orders beyond the scope of the show-cause notice.
7. Lack of mens rea for imposing penalty.

Detailed Analysis:

1. Premature Levy of Penalty Without Tax Assessment:
The petitioner contended that the penalty was premature as it was imposed without determining the tax liability. The court held that under Section 45A of the Kerala General Sales Tax Act (KGST Act), penalty can be imposed if any of the acts specified in clauses (a) to (h) are committed, and the burden of proving non-liability lies on the person penalized. The court found that the petitioner failed to prove that the goods reached Lakshadweep, thus justifying the penalty.

2. Specific Provision of Section 45A Not Mentioned in the Show-Cause Notice:
The petitioner argued that the show-cause notice did not specify the provision of Section 45A allegedly violated. The court noted that the show-cause notice detailed the allegations and the evasion of tax, which implicitly covered the provisions of Section 45A(1)(d) and (g). The court found that the notice sufficiently informed the petitioner of the charges, enabling them to respond adequately.

3. Non-Disclosure of Investigation Report and Relied Documents:
The petitioner claimed that the investigation report and documents relied upon were not disclosed. The court found that there was no investigation report and that the petitioner's representative had perused the documents during the proceedings. The court held that the petitioner had not been prejudiced by the alleged non-disclosure.

4. Penalty Imposed on Entire Quantity Sold Based on a Few Forged Documents:
The petitioner contended that the penalty was based on six forged documents covering only 250 KL of HSD, while the entire quantity sold was penalized. The court clarified that the six documents were samples, and the penalty was based on the entire fraudulent transaction. The court found that the petitioner failed to prove the genuineness of the entire transaction.

5. Seller's Liability for Subsequent Misdeeds of the Purchaser:
The petitioner argued that they should not be penalized for the purchaser's subsequent misdeeds. The court emphasized that the seller's liability arises from the first sale and the availed concession. The court found that the petitioner failed to prove the bona fides of the sale and the subsequent misconduct of the purchaser, thus justifying the penalty.

6. Findings in Penalty Orders Beyond the Scope of the Show-Cause Notice:
The petitioner claimed that the penalty orders contained findings beyond the show-cause notice. The court held that the findings were inferences drawn from the available records and that the core issue of wrongful availing of concessional tax was adequately covered in the show-cause notice.

7. Lack of Mens Rea for Imposing Penalty:
The petitioner argued that no mens rea was proved against them. The court noted that the facts and circumstances of the case, including the forged documents and the irregularities in the transaction, indicated contumacious conduct. The court held that the petitioner's actions justified the imposition of penalty.

Conclusion:
The court dismissed the writ petition, upholding the penalty imposed under Section 45A of the KGST Act. The court found that the petitioner failed to discharge the burden of proving non-liability, and the penalty was justified based on the irregularities and fraudulent nature of the transactions.