2011 (6) TMI 710 - HC - VAT and Sales Tax

Assessee being aggrieved by the order dated February 12, 2009 passed by the Additional Commissioner of Commercial Taxes, Zone I, Bangalore wherein the penalty imposed by the appellate authority has been set aside and the order passed by assessing authority imposing penalty at three times the value of tax has been revised and penalty under section 53(12)(a)(ii) of the Karnataka Value Added Tax Act, 2003 has been imposed Held that - It is clear from the provisions of section 53(12)(a)(i) and (ii) the penalty leviable should not be less than the rate of tax but subject to maximum of three times the tax and it is the discretion of the original authority or the authority imposing the penalty as to what is the amount of penalty to be imposed and mere fact that the discretion has been exercised to impose penalty at 1 times in this case would not by itself a ground to exercise revisional jurisdiction and enhance the penalty to three times. However, having set aside the order passed by the appellate authority it is clear that the maximum penalty imposed by the revisional authority at three times the rate of tax is arbitrary. Having regard to the facts and circumstances of the case and it would be just and reasonable to reduce the penalty to 1 times as proposed by the original authority and imposition of penalty at ₹ 47,926 imposed by the original authority under section 53(12) of the Karnataka Value Added Tax Act is entitled to be restored. Accordingly, the appeal is allowed in part.

Issues involved:
1. Penalty imposition under section 53(12)(a)(ii) of the Karnataka Value Added Tax Act, 2003.
2. Dispute regarding the quantity of M.S. tor steel transported.
3. Justifiability of the penalty amount imposed.

Analysis:

Issue 1: Penalty imposition under section 53(12)(a)(ii) of the Karnataka Value Added Tax Act, 2003
The appeal was filed by the assessee against the penalty imposed by the Additional Commissioner of Commercial Taxes. The order set aside the penalty imposed by the appellate authority and revised it under section 53(12)(a)(ii) of the KVAT Act, 2003. The revisional authority enhanced the penalty to three times the amount of tax, which was contested by the appellant. The court examined the discretion of the original authority in imposing penalties and concluded that the revisional authority's decision to enhance the penalty to the maximum amount was arbitrary. The court held that the penalty should be reduced to 1½ times the tax amount, as proposed by the original authority, and restored the penalty to the initial amount of &8377; 47,926.

Issue 2: Dispute regarding the quantity of M.S. tor steel transported
The case involved a consignment of M.S. tor steel being transported from Bhatkal to Mangalore, where a deficit in the quantity of steel was found during an inspection at Udupi check-post. The appellant explained the deficit by stating that a portion of the steel was sold en route, but the original authority rejected this explanation. The appellate authority accepted the explanation, setting aside the penalty. However, the revisional authority found the appellate authority's decision erroneous and reinstated the penalty. The court noted that the deficit in steel quantity was not disputed, but the explanation provided by the appellant was not satisfactory initially. The court upheld the revisional authority's decision to set aside the appellate authority's order.

Issue 3: Justifiability of the penalty amount imposed
The court scrutinized the penalty amount imposed by the revisional authority and found it unreasonable to enhance the penalty to three times the tax amount. While acknowledging the discretion of the authority in determining penalties, the court emphasized that the penalty should not be less than the tax rate but subject to a maximum of three times the tax. The court deemed the revisional authority's imposition of the maximum penalty as arbitrary and reduced it to 1½ times the tax amount, aligning with the original authority's proposal. Consequently, the court allowed the appeal in part, confirming the revisional authority's decision while reducing the penalty to the initial amount imposed by the original authority.

This detailed analysis of the judgment highlights the issues involved, the arguments presented by both parties, and the court's reasoning leading to the final decision.

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