2015 (9) TMI 156 - HC - VAT and Sales Tax

Condition for Imposition of Penalty Wilful non-disclosure of turnover On failure of appellant to respond to notices orders of assessment were issued confirming proposal, completing assessment and imposing penalty Whether imposition of penalty under section 25(3) r/w section 67 of kerela value added tax act could only be exercised if assessing authority was satisfied that escape of turnover was due to wilful non-disclosure by assesse Held that - provision says that penalty can be imposed if assessing authority was satisfied that escape from assessment was due to willful non-disclosure of assessable turn over by dealer Satisfaction can be arrived either on completion of assessment or during course of assessment as made for finalising best judgment assessment It cannot be said that there was any bar against imposition of penalty only when there was wilful non-disclosure of assessable turnover None of legal precedents persuade this to be accepted Therefore no reason to interfere with judgment impugned Appeal dismissed Decided in favour of Assesse.

Summary

Issues:
1. Challenge against pre-assessment notices and penalty under the Kerala Value Added Tax Act for the years 2010-2011 and 2011-2012.
2. Interpretation of the power to impose penalty under section 25(3) read with section 67 of the KVAT Act.
3. Legal precedents regarding the imposition of penalty in conjunction with the completion of assessment.
4. Whether penalty under section 25(3) can be imposed simultaneously with the completion of assessment.

Analysis:
1. The appellant challenged pre-assessment notices and penalty under the Kerala Value Added Tax Act for the years 2010-2011 and 2011-2012. The appellant failed to respond to the notices, resulting in the issuance of assessment orders confirming the proposal and imposing penalties. The appellant filed a writ petition against these orders, which was dismissed by the court.

2. The contention raised was regarding the power to impose a penalty under section 25(3) read with section 67 of the KVAT Act. The appellant argued that the penalty can only be imposed upon completion of the assessment and satisfaction of willful non-disclosure by the assessee. The court rejected this contention, stating that the assessing authority had prima facie concluded willful non-disclosure, allowing for the issuance of composite notices and orders simultaneously.

3. Legal precedents were cited, including a Division Bench decision and a later court decision, discussing the proximity of penalty imposition to the assessment process. The court emphasized that the imposition of penalty should have a close connection with the assessment process, and in this case, composite notices and orders were issued, justifying the initiation of penalty proceedings.

4. The crucial aspect under consideration was whether the penalty under section 25(3) could be imposed simultaneously with the completion of assessment. The court held that if the authority is satisfied during the assessment process about willful non-disclosure, there is no bar against proposing or finalizing the penalty concurrently with the assessment. The court rejected the argument that the assessment must be finalized before concluding willful non-disclosure, citing legal precedents and finding no reason to interfere with the judgment.

In conclusion, the writ appeal was dismissed, but the petitioner was permitted to file an appeal against the assessment orders within an extended time limit.