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TMI Blog2014 (6) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the assessee or a finding of attempt to evade tax. The assessee has made a claim, in turn, which can be rejected or accepted in assessment proceedings - Even on rejection, sufficient grounds do not exist for attracting penalty. Efficacious alternate remedy - Court would not exercise the discretionary jurisdiction under Article 226 of the Constitution of India in cases where there are efficacious alternate remedies; the two well recognized exceptions being violation of principles of natural justice and a proceeding taken under a provision of law which is ultra vires. One another exception would be when the proceeding itself is an abuse of process of law. This Court has not gone into the issue of classification at all, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat penalty under Section 67 of the KVAT Act cannot be maintained for reason of there being no contumacious conduct on the part of the assessee and for further reason that the penalty contemplated under Section 67 for attempted evasion of tax would definitely take in mens rea and cannot at all be said to be a civil obligation, which attracts penalty without anything more, other than tax delinquency as such. 4. The learned Special Government Pleader (Taxes) however, primarily opposes the writ petition on the ground of effective efficacious alternate remedy being available to the petitioner. The learned Government Pleader would also contend that the Intelligence Officer was perfectly within his powers in proceeding on an enquiry, when ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, to the self assessment made under Section 25, is not yet over. More reason why this Court should not go into the facts and pre-empt the Assessing Authority from a consideration of the question of classification. 7. In the present writ petition the penalty proceedings are with respect to the year 2011-12 and 2012-13. Notices were issued and were replied to; however, culminating in Exts.P13 and P14 orders imposing penalty at twice the amount of tax, alleged to have been evaded for the respective years. That assessee disclosed the turn over, in the books of accounts, as also the annual returns, is not disputed at all. The power of the Assessing Authority to look into the annual return as also the books of accounts and determine the clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.I.D Parry (1) Ltd v. Assistant Commissioner of Commercial Taxes [ 2000 (2) SCC 321 ]. 9. On point is the decision of the Honourable Supreme Court in Sree Krishna Electricals v. State of Tamil Nadu and Another (2009 (11) SCC 687) , paragraph 7 of which is extracted hereunder:- So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appellant's accounts books. Where certain items which are not included in the turnover are disclosed in the dealer's own account books and the assessing authorities includes these items in the dealers' turnover disallowing the exemption penalty cannot be imposed. The penalty levied stands set aside . 10. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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