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TMI Blog2009 (6) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... rned single judge, we do not think we are justified in dismissing the writ appeal on the same ground at this distance of time because this court admitted writ appeal and granted stay against recovery of penalty. Besides this, this is the second round of litigation after one round of remand by this court in the same matter. We have heard counsel for the appellant and Government Pleader on the merits of the case and we, therefore, proceed to decide the dispute, i.e., the appellant's challenge against exhibits P15 to P18 orders issued by the Intelligence Officer of sales tax levying penalty on the appellant for the assessment years 1991-92 to 1994-95. The appellant is a dealer in ready-made garments at Trichur. During the assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant, this court vide exhibit P13 judgment cancelled the orders of the Commissioner and remanded the matter for fresh consideration. Pursuant to the judgment, the Commissioner issued exhibit P14 order whereunder he remanded the matter to the Intelligence Officer for reconsideration after taking into account the petitioner's contentions based on the Tribunal's order. Even after remand, the Intelligence Officer issued exhibits P15 to P18 orders confirming penalty for evasion of tax under section 45A of the KGST Act against which W.P. (C) No. 29765/2007 [2010] 029 VST 0442 was filed. Even though learned single judge did not decide the case on merits, both sides argued the case on merit before us and we, therefore, consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the Department to file revision petitions against the orders of the Tribunal in assessment cases will bar the statutory authority from levying penalty, if there are sufficient materials justifying it. The Tribunal has no jurisdiction in penalty matters and the final statutory authority so far as penalty under section 45A is concerned, is the Commissioner of Commercial Taxes who is the second revisional authority enjoying also suo moto revisional powers to correct orders of the first revisional authority. This court has in large number of cases held that penalty proceedings under section 45A of the Act are independent proceedings and the same can be proceeded with even without waiting for completion of assessments. We are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady-made garments located outside Kerala. The inescapable conclusions from the evidence collected by the Department and relied on by them in the assessment and penalty orders are the following: (i) The demand drafts are admittedly purchased by the full time employee of the appellant by name Mr. Achuthan who has given confirmative statements about purchase of D. Ds. (ii) During the first year, in the course of around three months 30 D. Ds. were purchased which means that on an average every third day the employee went out of the shop for a few hours to purchase D. Ds. Even though the appellant is denying purchase as made for her, the appellant has no explanation why the employee was allowed to leave the shop during working hours on a regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, is possible. In our view, the only possible conclusion is that the appellant by using the service of an employee, steadily purchased D. Ds. in the name of employee from branches of the banks located nearby for making inter-State purchases from outside State and made sales without accounting the same. We are of the view that if the Tribunal's orders were challenged in revision before this court, those orders would not have been sustained. In penalty proceedings Department is not bound by the inference drawn by the Tribunal in their appellate order. We notice from the Tribunal's orders relied on by the appellant that they have not given any finding that the appellant was not engaged in unaccounted purchases. On the other hand all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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