9911796707
TMI Blog1997 (8) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... the other as No. 3 burners. The Assistant Commercial Tax Officer was of the view that 685 pieces of No. 3 burners and 657 pieces of No. 2 burners were not covered by any valid documents. A notice under section 28A(4) of the Karnataka Sales Tax Act, was accordingly issued and served upon the driver of the vehicle asking him to show cause why a penalty of Rs. 8,000 be not imposed on account of the goods in question being without proper documents. The driver it appears expressed his unwillingness to avail of the opportunity granted to him and conveyed to the officer that he had no money even to pay the penalty. Consequently, the officer passed an order imposing a penalty of Rs. 8,000 under section 28A(4) of the Act and directed that in the eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order imposing the penalty it is apparent that the physical verification of the goods had revealed that as many as 685 pieces of No. 3 burners and 657 pieces of No. 2 burners were without any documents in support of the same. The Assistant Commercial Tax Officer was therefore justified in assuming jurisdiction and proposing a penalty. That a show cause notice was issued by the Assistant Commercial Tax Officer and served upon the driver is also not in dispute. What is argued is that the notice did not give a reasonable opportunity to the driver or to the petitioner to file their objections. It is urged that the notice was issued on the 10th of March, 1990 and on the very same day, even the order imposing the penalty was also passed, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he position in the present case he cannot turn round and complain of violation of the principles of natural justice. I therefore have no hesitation in rejecting the challenge to the impugned order on that ground. 5.. Equally untenable are the other two submissions made by the learned counsel. Section 28A of the Act, engrafts a provision which is aimed at preventing evasion of taxes payable under the Act. It empowers the State Government to establish check-posts and erect barrier and obliges the owner or person in-charge of the goods vehicle to carry with him a goods vehicle record, a trip sheet or a log book, and a bill of sale or a delivery note or such other documents as may be prescribed containing such particulars as may be prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore provide a machinery which is entirely aimed at preventing the evasion of tax payable under the Act. The power to enact such a provision is incidental to the power vested in the State Legislature under entry 54 of List II to levy a tax on the sale or purchase of goods. It is therefore futile for the petitioner to contend that the provisions of sub-section (2) or sub-section (4) of section 28A, are beyond the legislative competence of the State Legislature. Equally untenable is the submission that since the taxing event is the sale of goods which has yet to take place, there is no question of prescribing or levying a penalty for evasion in anticipation of such a sale. If the power to prevent evasion of tax is accepted as incidental to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has to be only to the extent the same is necessary and the goods so seized have to be retained for 10 days before the same can be sold to liquidate the liability. Section 28A of the State Act, is not therefore in pari materia with the provisions with which the Supreme Court was dealing in Abdulla's case [1971] 27 STC 1, nor can the principle enunciated in the said decision be extended or applied to the said provision as it stands after the amendments brought from the year 1969 onwards. The challenge to section 28A must therefore fail and is accordingly rejected.
6.. There is no merit in this writ petition which fails and is dismissed with costs assessed at Rs. 1,500.
Writ petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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