2013 (11) TMI 461 - HC - VAT and Sales Tax

Proceeding u/s 45A - Imposition of penalty - Petitioner contends that he is neither a dealer nor an assessee under the Kerala General Sales Tax Act, 1963 - The petitioner is not in possession of the premises - Therefore, the proceedings under Section 45A are without jurisdiction and are liable to be quashed - Held that - The course adopted by the assessing authority is totally unacceptable especially in view of the specific contention taken by the appellant that he did not conduct the disputed business and the signatory to the SIR was not his relative. It appears, simply by way of relying on the penalty order, the assessing authority was pleased to pass an order of assessment by way of estimating the taxable turnover of the appellant on the basis of the details collected by the Intelligence Officer at the time of inspection - Matter remitted back to assessing authority to conduct a fresh enquiry and pass appropriate order in accordance with law after affording an opportunity of hearing to the petitioner - Decided in favour of Assessee.

Summary

Issues:
Challenge to penalty imposition and revenue recovery proceedings.

Analysis:
The petitioner, a pandal construction contractor, challenged the penalty imposition and revenue recovery proceedings, asserting that he is neither a dealer nor an assessee under the Kerala General Sales Tax Act, 1963. The petitioner argued that since he is not in possession of the premises, the proceedings under Section 45A lack jurisdiction and should be quashed. Additionally, the petitioner highlighted an assessment order for the year 2001-2002, which was appealed before the Appellate Assistant Commissioner and later the Tribunal. The Tribunal, through Ext.P12 order, criticized the assessing authority for its approach and directed a fresh enquiry, emphasizing the need for proper evidence collection and a fair assessment process.

The court considered the arguments presented by both parties. The learned Senior Government Pleader for tax opposed the petitioner's contentions, noting that the petitioner failed to produce necessary documents despite opportunities provided. However, the court, without delving into the merits of the case, decided to follow the Tribunal's directive in Ext.P12 order. Consequently, the court set aside the original order (Ext.P3) and remitted the matter back to the assessing authority for a fresh enquiry. The assessing authority was instructed to conduct a new assessment, provide necessary documents to the petitioner upon request, allow a reasonable opportunity for the petitioner to present a defense, and conclude the proceedings within six months from the petitioner's appearance. The court specified that the amount to be paid by the petitioner would be subject to the outcome of the fresh proceedings.

In conclusion, the writ petition challenging the penalty imposition and revenue recovery proceedings was disposed of with the court's decision to set aside the original order and order a fresh enquiry by the assessing authority in line with the directions provided in the Tribunal's Ext.P12 order.