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TMI Blog2015 (11) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... n that formed the basis of the acceptance by the State of his application for compounding under Section 74 of the Act. Accordingly, we find that the Petitioner could not have availed the appellate remedy under Section 55 of the Act against Annexure-B order of the Intelligence officer and the finding of the Appellate Tribunal that holds so is legally un-assailable. Resultantly, we see no reason to interfere with Annexure-D order of the Appellate Tribunal - Decided against assessee. - O. T. Revision No. 127 of 2013 - - - Dated:- 10-6-2014 - JOSEPH K. M. AND JAYASANKARAN NAMBIAR A. K. JJ. Harisankar V. Menon and Meera V. Menon for the petitioner. Sudheesh Kumar, Senior Government Pleader, for the respondent. ORDER This OT Revision is filed challenging the order dated, 26th March, 2013 of the Kerala Value Added Tax Appellate Tribunal. The brief facts necessary for the disposal of the Revision petition are as follows:- The Petitioner is an Assessee for the purposes of the Kerala Value Added Tax Act (hereinafter referred to as the 'Act') and is engaged in the trading of automobile spare parts. The places of business of the Petitioner were inspected by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against any order issued or proceedings recorded under the Act other than those that are expressly excluded under that provision. Since it is not in dispute that an order passed under Section 74 of the Act is not expressly excluded by Section 55, the first Appellate Authority was legally justified in entertaining the appeal and passing orders on merits. It is his contention that insofar as the Assessee was agitating the issue regarding correctness of the quantification of compounding fee by the Intelligence Officer, it was not a case where the Assessee was turning around and reneging from its offer to compound the offence and hence the decision in the Sreesastha Trading Company case (Supra), relied upon by the Appellate Tribunal, did not apply on the facts of the instant case. It is his further contention that the Appellate Tribunal ought to have considered the issue on merits and found that the quantification of compounding fee done by the Intelligence Officer was incorrect. This was because, the specific case of the Assessee was that it had accounted the entire turnover, relating to the goods stored in the undeclared godowns, in its books of account and this fact could be easily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat orders passed under Sections 48, 49, 67, 69, 70, 70A and 72 shall be appealable only to the Deputy Commissioner (Appeals: Provided further that the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals) may admit an appeal presented after the expiration of the said period if he is satisfied that the Appellant had sufficient cause for not presenting the appeal within the said period. Provided also that no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax or other amounts admitted by the Appellant to be due or such instalment thereof as might have become payable, as the case may be, where the appeal is against an assessment completed under sub-section (6) of Section 23, or under Section 24 or Section 25. (2) Where an appeal lies against any order under sub-section (1), any order issued under Section 66 to rectify any error in such order shall also be appealable under the said sub-section. (3) The appeal shall be in such form and shall be verified in such manner as may be prescribed, and shall be accompanied by a fee of five hundred rupees. (4) Notwithstanding that an appeal has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer for cancellation of registration made under Section 16(8); c) An order cancelling the registration of a dealer made by the Authority under Section 16(9); d) An order cancelling the permit of a dealer made under Section 19(8); Although the above orders are non-appealable, the dealer has the remedy of applying for a revision of such order or proceedings. For this purpose, an application in Form No. 29 may be filed before the Deputy Commissioner. Procedure for filing appeal. The appeal shall be made within 30 days from the date of service of the order appealed against. The period of 30 days may be extended by the Deputy Commissioner (Appeals) if the Appellant provides sufficient cause for the delay. The appeal shall be in Form No. 29 (Rule 72) accompanied by a fee of five hundred rupees. Payment of tax Sub-section (4) requires that the amount of tax demand as per the order appealed against shall be paid as per the order. However, on furnishing sufficient security in Form No. 7, the Deputy Commissioner (Appeals) may give directions as he thinks fit in respect of payment of tax before disposal of the appeal. In the case of best judgment assessment made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht lakh]; and:- [Provided that the maximum compounding fee collectable against a single offence spread over several return periods in a financial year shall be two lac rupees.] (b) in other cases, a sum of money not exceeding ten thousand rupees: Provided that the Commissioner may by order authorize any officer to compound the offence under this Section on payment of a reduced amount. (2) On payment of such amount under sub-section (1), no further [penal or prosecution] proceedings shall be taken against such person, in respect of that offence. 8. It is clear from a reading of Section 74 that an Assessee who opts for the benefit of the said provision, accepts the commission of the offence alleged to have been committed by it. Once it does that, the Competent Authority proceeds to determine the compounding fee payable by the Assessee in accordance with clause (a) or (b) of sub-section (1) of the said Section. We feel that in such a situation, it will not be open to an Assessee who opts for compounding under the said Section, and thereby avoids adjudication proceedings for penalty and prosecution under the Act, to turn around and contest the order of the Competent Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner's composition of the offence of failure to keep true and correct accounts virtually amounted to an admission by it of the fact that it had not kept true and correct accounts in respect of the stock in its undeclared godowns. This admission by it was the basis for the composition under Section 74 and it cannot renege from this stand by contending that it had, in fact, accounted the stock in its books of account. In other words, the contention put forth by the Petitioner before the first Appellate Authority was not one that pertained to the quantification of the compounding fee but went to the very root of its admission before the Competent Authority for the purposes of Section 74. As already noted above, we are of the view that the Petitioner cannot be permitted to go back on the admission that formed the basis of the acceptance by the State of his application for compounding under Section 74 of the Act. Accordingly, we find that the Petitioner could not have availed the appellate remedy under Section 55 of the Act against Annexure-B order of the Intelligence officer and the finding of the Appellate Tribunal that holds so is legally un-assailable. Resultantly, we se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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