2009 (8) TMI 1194 - HC - VAT and Sales Tax

Summary

Issues involved: Challenge to tax liability, disallowance of trade discount claim, addition of escaped turnover, imposition of penalty under Section 67 in a 'composite order'.

The judgment by the High Court of Kerala addressed the challenge to an order (Ext. P5) passed by the first respondent, which fixed the tax liability, disallowed the claim for trade discount, added the escaped turnover, and imposed a penalty under Section 67 through a 'composite order'. The petitioner contested the order through a Writ Petition.

The Court noted that the petitioner was given an opportunity to respond to the pre-assessment notice and the notice related to the penalty under Section 67. However, it was observed that the petitioner did not raise any objection specifically regarding the imposition of penalty, which raised concerns about the proceedings' sustainability. The Court highlighted that the order only referred to a notice under Section 25, not Section 67, and questioned the validity of the proceedings based on a previous decision.

Upon considering the facts and circumstances, the Court unequivocally held that the 'Composite Order' (Ext. P5) was incorrect and unsustainable. It emphasized that penalty imposition cannot be done as a matter of course and requires a specific finding regarding the conscious act of the assessee leading to the violation. The Court set aside the Ext. P5 order and directed the first respondent to reexamine the proceedings after providing proper notice to the petitioner in accordance with the law. Additionally, all coercive actions against the petitioner were ordered to be temporarily halted.

In conclusion, the Writ Petition was disposed of accordingly, ensuring a fair and lawful process in the tax assessment and penalty imposition proceedings.