9911796707
TMI Blog1993 (3) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... exhibit P2 in which certain allegations were made against the petitioner. The gravamen of the allegations was that despatches of petroleum products by the petitioner to the two purchasers in Mahe, namely, Mahe Beach Trading Co. and Surya Service Station, Palloor, were actually diverted to stations in Kerala without being delivered at destination. 2.. In support of this notice, it was mentioned, inter alia, that the form 1-A vehicle check register maintained at the check-post Azhiyoor Chungam for the period March 1, 1991 to November 30, 1991, did not contain entries relating to these transports. Secondly it was stated that no seal of the sales tax checkpost had been affixed on the acknowledgement copy of the invoices kept by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections as the matter is now pending with the Deputy Commissioner in an application filed under section 45A(3) of the Act and that authority will have to deal with the matter in all its aspects. It will not be proper for this Court at this stage to make any observations regarding the merits of the controversy. 4.. Overruling the objections contained in exhibit P3, the first respondent levied a penalty of rupees thirty lakhs under section 45A(1)(b) for not maintaining true and correct accounts. This order was challenged before the second respondent, Deputy Commissioner, by filing an application under section 45A(3) of the Act, a true copy of the said application being exhibit P4. The application sets forth in detail the petitioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the aforesaid decisions while passing the order. Any failure to keep those guidelines in mind while exercising the discretion will amount to non-exercise of the discretion in the eye of law liable to be interfered with tinder article 226 of the Constitution of India. This Court said that to decide as to whether the appellant has made out a prima facie case, as against a frivolous one, the appellate or the revisional authority should look into the questions that are involved in the appeal or revision. This should not be done in a mechanical manner, but objectively and with reference to the facts and circumstances of the case. 6.. In the two decisions of Purushothaman [1984] 149 ITR 120 (Ker) 1983 KLT 607 and Rajan Nair [1987] 165 ITR 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment. 7.. The question is whether exhibit P5 is liable to be interfered with by this Court, in the exercise of its jurisdiction under article 226 of the Constitution. In this connection, I must mention here that this Court will not normally exercise its discretion to interfere with an interlocutory order unless the order is one passed perversely, or is one passed without adverting to relevant facts and circumstances of the case, or one which is based on irrelevant circumstances. Exhibit P5 is liable to be tested on these factors. 8.. It will be seen from a perusal of exhibits P3 and P4 that serious objections have been raised by the petitioner against the proposal to levy penalty as also against the imposition of penalty. These a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which should have been taken note of by the second respondent while disposing of the application, exhibit P4. However, all these have not been borne in mind while passing the order, exhibit P5. 10.. I am therefore of the view that exhibit P5 has been passed without adverting to relevant facts and circumstances of the case. I am therefore inclined to interfere with the order exhibit P5. However, an expeditious disposal of exhibit P4 is called for. 11.. Ordinarily the quashing of exhibit P5 will entail a direction to the second respondent to reconsider the application for stay. However, I feel that the interests of justice in this case will be subserved with a direction to dispose of the application exhibit P4 itself with all expedition. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
