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TMI Blog2013 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was completed still later. No material is available regarding the date on which the petitioner had opted for the assessment under Section 17(4) to hold that the option was not after 1.4.1998. In such circumstances, there is nothing illegal in the levy of penalty under Section 17(5) (A), as per Ext.P1 order, which has been confirmed by the Revisional Authorities concurrently - against assessee. - W.P.(C) NO.34097 OF 2007 - - - Dated:- 18-10-2012 - MR. ANTONY DOMINIC J. PETITIONER: BY ADV. SRI. K.M. FIROZ RESPONDENT: R1-R3 BY GOVERNMENT PLEADER SRI.SHAIJ RAJ T.K. JUDGMENT Ext.P1 is an order of penalty passed against the petitioner on 14.1.2002. By this order passed under Section 17((5)(A) of the KGST Act, on the re-opening of the assessment, penalty of Rs.3,21,198/- was levied on the petitioner, for the assessment year 1996-1997. The order was confirmed by the Revisional Authorities as per Exts.P2 and P3. It is challenging Exts.P1 to P3 the writ petition is filed. 2. Contention raised by the counsel for the petitioner is that Section 17(5)(A) was introduced by Finance Act 1998, with effect from 1.4.1998 and that therefore the penalty as provided under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit in turnover. Even though the petitioners have a case that the Commissioner of Commercial Taxes though circulars issued compelled the assessing officers to complete the assessments under Section 17(4) of the Act, the procedure for assessment contemplated under the relevant KGS Rules is optional in nature and in order to avail the benefit, the assessees will have to comply with Rule 18A(1A) of the Kerala General Sales Tax Rules, which provides for filing of quarterly returns along with payment of tax. Further the annual return filed should be accompanied by statements in Form No.21CC prescribed under the Rule. Until the assessment year 1992-1993 option for assessment under Section 17(4) could have been exercised by the assessees by following the procedure prescribed under Rule 18A as sated above. However, by an amendment by Act 13/93 with effect from 1.4.1993 the assessees who have not opted for assessment under Section 17(4) had the option to request for such assessments in respect of those assesssments pending completion of filing statements prescribed, that is Form No.21CC with required documents attached thereto. In fact sub rules (1B) and (1C) of Rule 18A which provided for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is provided for same offence, that is evasion of tax. I cannot agree with the argument of the petitioners because petitioners by opting for assessment under Section 17(4) constitute a separate class in themselves on whom the assessing officer has reposed confidence and assessments are completed accepting the returns and the statement filed in support thereof. In other words petitioners do not undergo the normal process of assessment which involves whether required by the officer scrutiny of accounts, issuing of pre- assessment notice, filing of reply and contesting the proposal for assessment made by the assessing officer. Section 17(4) only visualises completion of assessment in terms of the claim made by the assessees who are presumed to be honest in the declarations made by them in the returns filed and the statements accompanying thereto, namely Form No.21CC and the documents attached thereto. In sch cases it is mandatory for the assessing officer to complete the assessment without scrutiny, but after prima facie checking the returns and documents furnished by the petitioners. The accounts are not called for, for verification and the officer accepts the claims of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his allegations denied in the counter affidavit. The respondents contention is that by circulars the officers were only directed not to deny the benefit of Section 17(4) assessments to those assessees who exercised option by filing Form No.21CC but to complete such assessments under Section 17(4) itself, ie., without going for scrutiny -assessments. Even though it is a settled position that circulars are binding on the assessing officers, I am unable to accept this contention because the assessment under Section 17(4) is possible only on the assessee furnishing a declaration and statement in Form No.21CC in terms of Rule 18A(1A) of the Rules accompanied with the documents prescribed therein. The furnishing of declaration in form No.21CC under Rule 18A is the exercise of option even in pending assessments for completion of assessment under Section 17(4) and therefore the petitioners cannot contend that the assessments completed under Section 17(4) are forced on them and they did not exercise such an option. It is to be noted that the assessment order under Section 17(4) itself is issued in the copy of the Form No.21CC furnished by the assessee as provided under Rule 18(1D) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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