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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 ..... ch will be more than the penalty. The writ appeal is accordingly dismissed confirming exhibits P15 to P18 orders of penalty on merits. - W. A. No. 2604 of 2007 - - - Dated:- 2-6-2009 - RAMACHANDRAN NAIR C.N. AND ABDUL REHIM C.K. , JJ. The judgment of the court was delivered by C.N. RAMACHANDRAN NAIR J. The writ appeal is filed against judgment of the learned single judge declining to interfere with challenge against penalty orders issued under section 45A of the Kerala General Sales Tax Act for the reason that the petitioner has effective statutory remedy by way of revision before the higher authority. Even though we do not find anything wrong with the view taken by the learned single judge, we do not think we are justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal's orders, the Intelligence Officer (Investigation Branch) initiated penalty proceedings for evasion of tax under section 45A of the KGST Act which led to levy of penalty at double the amount of tax. When these orders were challenged in first revision before the Deputy Commissioner, he confirmed the penalty orders but reduced the penalty to one and a half times the tax evaded. In second revision, the Commissioner confirmed the orders of the first revisional authority. The appellant challenged the said orders of the Commissioner before this court on the ground that the Tribunal's orders relating to assessments were in favour of the appellant. Based on the contentions raised by the appellant, this court vide exhibit P13 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal. Counsel for the petitioner has relied on a decision of the Supreme Court in K.C. Builders v. Assistant Commissioner of Incometax reported in [2004] 265 ITR 562 (SC); [2004] 1 KLT 596 and contended that once assessment is cancelled, subsequent orders on penalty and prosecution based on such assessments also are not tenable. On the face of it, the argument of the counsel for the petitioner is correct because if final fact-finding authority like the Tribunal has rendered findings on facts and the Department has accepted the same, then they cannot take a different stand in penalty proceedings pertaining to the same issue. However, the question to be considered is whether the failure of the Department to file revision petitions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which assessment was revised and penalty levied is the evidence collected by the Department about purchase of D. Ds. by one of the employees of the appellant by name Achuthan in favour of outside suppliers of garments from local branches of two banks near to place of business of the appellant. The entire details of the D. Ds. purchased by the appellant's employee in the name of outside Kerala suppliers of ready-made garments are available in penalty orders and in the orders of assessment and orders of the Tribunal relied on by the appellant herself. The Government Pleader read over the entire statements furnished by the employee who purchased the D. Ds. in the name of suppliers of ready-made garments located outside Kerala. The ines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed large number of D. Ds. on a regular basis in the course of four years has done any service for any other party or has done any business for himself and the said employee also has no case in these lines. The appellant is engaged in business of ready-made garments and the D. Ds. taken were all for suppliers outside Kerala who are engaged in sale of ready-made garments and from some of whom the appellant has accounted purchases as well. The only question now to be considered is, what is the reasonable inference possible from the above facts or whether any inference other than what is drawn by the Department, i.e., unaccounted purchase by the appellant through D. Ds. purchased in the name of the employee, is possible. In our view, the only p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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