9911796707
TMI Blog2008 (10) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... bit P4, it is stated that the officer mis-interpreting the orders of this court, has proceeded to observe that the court adjudicated the issue to the effect that the assessment orders of the purchasing dealers are not relevant in the issue and they are not documents relied on penalty proceedings by the Department. Thereafter, the petitioner has filed exhibits P5 and P6 replies. Thereafter again, exhibit P7 notice is issued. Apparently, exhibit P7 is issued after reference is made to exhibit P5 reply. Reference is also made to the relevance of pay-in slips relating to money deposit by the customers in their bank accounts. Thereafter, it is, inter alia, stated as follows: "However, considering your request, summonses are being sent to all of them whose evidences relating to bank transactions are relied upon from this office for your cross-examination at 11 AM on September 9, 2008. You are also given the liberty to bring them for cross-examination at 11 AM on September 9, 2008, since they are proved to be your good customer and trustworthy people even as per your records. If you desire, you may also bring your staff who prepared returns and other documents as well as the form 18 decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench of the Kerala High Court.] W.A. No. 2000 of 2008. M. Chandrasekharan (Senior), T.M. Sreedharan and V.P. Narayanan for the appellant. Muhammed Rafiq, Senior Government Pleader, for the respondents. JUDGMENT The judgment of the court was delivered by H.L. DATTU C.J.-This writ appeal is directed against the orders passed by the learned single judge in W.P. (C) No. 26857 of 2008 dated September 16, 2008 See para 379 supra.. By the impugned order the learned single judge has rejected the writ petition. In the writ petition filed, the petitioner has called in question exhibits P4 and P7 notices issued by the first respondent, Intelligence Officer (IB), Investigation Branch, Department of Commercial Taxes, Kollam, in exercise of the powers under section 45A of the Kerala General Sales Tax Act, 1963 (for brevity and convenience, hereinafter referred to as, "the Act of 1963"). The subject-matter of exhibit P4 notice is evasion of tax by the petitioner by making bogus claim of sale of timber at concessional rate without any actual sale of timber to the form 18 suppliers, M/s. J and J Timbers, Chalakudy, and the penalty proposed for the years 2001-02 to 2004-05. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within Chapter VII. The said provision is as under: "45A. Imposition of penalty by officers and authorities.-(1) Notwithstanding anything contained in section 46 if the assessing authority or the Appellate Assistant Commissioner is satisfied that any person,- (a) being a person required to register himself as dealer under this Act, did not get himself registered; or (b) has failed to keep true and complete accounts; or (c) has failed to submit any return as required by the provisions of this Act or the Rules made thereunder; or (d) has submitted an untrue or incorrect return; or (e) has failed to comply with all or any of the terms of any notice or summons issued to him by or under the provisions of this Act or the Rules made thereunder; or (f) after purchasing any goods in respect of which he has made a declaration under proviso to sub-section (3) of section 5, has failed to make use of the goods for the declared purpose; or (g) has acted in contravention of any of the provisions of this Act or any rule made thereunder, for the contravention of which no express provision for payment of penalty or for punishment is made by this Act; (h) or has abetted the commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of penalty by officers and authorities under the Act, if those authorities are satisfied that any person, being a person required to register himself as a dealer under the Act, but has not registered himself, has failed to keep true and complete accounts, has failed to submit any returns as required under the Act or the Rules framed thereunder, etc., may impose a penalty. Since penalty proceedings are quasi-criminal proceedings, the imposition of penalty can be done only after issuing a show-cause notice to the assessee and after affording an opportunity of hearing. The proceeding contemplated by section 45A has nothing to do with the jurisdiction of the assessing authority. Merely because the assessment proceedings are pending for several years, it does not preclude the Intelligence Officer of the Department to initiate proceedings under section 45A of the Act. These proceedings, in our view, need not have to wait till the regular assessment proceedings are completed by the assessing officer. The proceedings under section 45A can be initiated and continued by an officer who has been authorised by the Government in this behalf by notification in the Gazette. Therefore, it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act are created for the purpose of applying the statute in the first instance.
Accordingly, it is normally desirable to let all statutory authorities develop the necessary factual background upon which decision should be based.
And since the decision of the statutory authorities frequently requires expertise, the authorities should be given the first chance to exercise their discretion and further apply their expertise. Apart from this, the statutory authorities are created as a separate entity and are vested with certain powers and duties, the courts ordinarily should not interfere with the action of the statutory authorities until it has completed its own action or else has clearly exceeded its jurisdiction. We hasten to add, the exhaustion doctrine is not inflexible and when the reasons supporting the doctrine are found inapplicable, the doctrine should not be blindly applied.
In view of the above, the learned single judge has not committed any error, whatsoever, which would call for our interference. Accordingly, the writ appeal requires to be rejected and it is rejected, without reference to the respondents.
Ordered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
|
