9911796707
TMI Blog2014 (5) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ils and is rejected accordingly. The assessment proceedings and the penalty proceedings are distinct and separate - Petitioner brought to notice that, the first circumstance/ground as raised in Ext.P5 notice with reference to the term 'reverse tax' u/s 12 (4) of KVAT Act, in respect of the taking back of some of the goods after availing the rebate under the Entry Tax Act to places outside the State is correct or not - This is a matter which requires to be reconsidered with regard to the imposition of 'penalty' and the quantum, if any, by the third respondent - Accordingly, Ext.P7 order is set aside and STO is directed to re-consider the matter Writ petition is disposed of – Decided in favour of assessee. - W.P.(C). No. 12865 of 2008 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the entries of Ext.P1 return, there is an excess payment of Rs. 15,39,629/-(Rupees fifteen lakhs thirty nine thousand six hundred and twenty nine), which in fact is sought to be set off against the subsequent tax liability. 3. While so, the assessing authority refused to accept the return filed by the petitioner and declined the relief to set off the excess payment effected by the petitioner under the KGST Act in respect of the liability arising from 1.4.2005 under the KVAT Act, stating that there was no enabling provision. Ext.P4 assessment order for the period from April 2005 to December 2005 passed by the third respondent was followed by Ext.P5 penalty notice under Section 67(1) of the KVAT Act, mainly on two grounds. The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is produced along with the present writ petition as Ext.P10. It was pointed out that, by virtue of the said decision rendered with reference to Section 89 as well as 98 of the KVAT Act, the petitioner was entitled to have similar relief. Taking note of the facts and figures, the Division Bench of this Court intercepted Ext.P8 judgment only, to the extent the petitioner was relegated to avail the statutory remedy in respect of the assessment and the assessing authority was directed to pass appropriate orders in tune with the judgment passed by this Court in W.P.(C) No.31458/2005. In other words, the challenge raised against Ext.P9 notice therein, i.e., the penalty proceedings under Section 67(1) of the KVAT Act was never touched. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 17.8.2006. Even though, Ext.P8 judgment was passed only much later on 10.1.2007, the petitioner did not produce Ext.P7 order imposing penalty and got the writ petition amended, challenging the said order as well. Even in W.A.No.514/2007, which led to Ext.P9 judgment dated 2.3.2007, no reference is made to the said order and the grievance was in respect of the assessment order and Section 67 notice. Though interference was made by the Division Bench with regard to the assessment, the proceedings in respect of 'penalty' were left untouched, as borne by paragraph 2 of the said verdict. The only direction given to the third respondent was to consider the request of the appellant for adjustment of tax paid towards tax due, in the light of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 12(4) of the Act. Therefore the portion of special rebate claimed on the goods which were subsequently transferred outside the state as stock transfer would be treated as reverse tax due for the respective return periods and as such the returns for these periods ought to have been revised. But the dealer has not filed the revise return so far. Further, during the return period for April 2005 the assessee claimed input tax credit of Rs.15,45,493.00 being excess KGST paid during 2002-03 and 2004-05. As per Rule 22(9) of the Act, any amount paid toward 90% of the estimated tax for March 2005 under the KGST Rules and which is later found in excess only shall be claimed as input tax for April 2005. Therefore the amount of KGST said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the third respondent himself as per Ext.P11. The question then arising for consideration is, whether Ext.P7 is to be let to remain in tact. 10. True, the assessment proceedings and the penalty proceedings are distinct and separate. But the question is whether the basic ingredient as contemplated under the provisions, particularly with reference to the element of 'mens rea' stands satisfied, so as to justify the penalty. It is also brought to the notice of this Court by the learned counsel for the petitioner that, the first circumstance/ground as raised in Ext.P5 notice with reference to the term 'reverse tax' under Section 12 (4) of the Act, in respect of the taking back of some of the goods after availing the rebate under the Entry Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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