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TMI Blog2018 (12) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... or the year 2014-15. The assessee, was a dealer who was required to file audited statement of accounts under Section 42 of the KVAT Act. The audited statement was filed on 16.05.2017. Admittedly as per the audited statement there were discrepancies in the returns filed. The assessee had an option to file a revised return along with the audited statement, as provided under Section 42. For reasons best known to the assessee, the opportunity was not availed. The learned Counsel for the assessee, before us, submits that at that point there was a change in regime and the goods and services enactment was already in place and hence there was a confusion as to how the revised return has to be filed. 3. Subsequently, an Intelligence Officer took note of the discrepancies in the annual return, as revealed on the filing of the audited statement. We do not look at the specific discrepancies noticed, lest we preempt a consideration on the factual aspects by the appellate authorities, if we so relegate the matter. In the present appeal against the judgment in a petition under Article 226, the only question is whether the order of penalty can be interfered with as has been declared in State of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 does not mandate a contumacious conduct and in such circumstances the assessee is prejudiced insofar as the proceedings initiated under Section 67. Under Section 25(3)there should be satisfaction recorded of the officer, on whether the escapement was by reason of willful non disclosure of the assessee. Reliance is also placed on 2014 VIL 492 Ker (M/s. Chakkiath Brothers v. The Assistant Commissioner, Commercial Taxes,) and WP(C) No.27101 of 2015 (Canmec Office Technologies v. State of Kerala). The assessee also argues on the basis of Joemon Rajan that there was an estimation made by the Intelligence Officer insofar as adopting 60% Gross Profit (GP) which in any event was not permissible. 5. The learned Senior Government Pleader submits that there was absolutely no estimation made by the Intelligence Officer, since it is stated in the impugned order that the GP was as disclosed in the returns. There was definitely suppression, insofar as the returns having not disclosed the actual purchase, sales and so on and so forth as noticed in the order itself. With respect to the contumacious conduct that is required under Section 67 it is pointed out that this Court in State of Kerala v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-clause (d) of S.67(1) assumes more rigour in the teeth of the onerous obligation, resulting in imposition of penalty without reference to whether there has been disclosure made in the books of accounts, has to be accepted." 8. With the above legal proposition in the background we look at the penalty order passed as per Ext.P5. We also garner support from Hotel Ambassador to hold that Section 67 is not regulated by Section 25(3). Hotel Ambassador looked at analogous provisions, Sections 19 & 45A of the Kerala General Sales Tax Act, 1963, which were respectively the provisions enabling re-assessment and imposition of penalty. The learned Single Judge found the penalty proceedings to be possible only in case of reassessment. The power of the Assessing Officer to proceed under Section 19 was held to be independent of the power of the Intelligence Officer to proceed under Section 45A; by the Division Bench in the cited case. The enabling power under Section 19 of the KGST Act and Section 25 of the KVAT Act, to resort to imposition of penalty under Section 45A or Section 67, is independent of the power exercised by the departmental officers empowered to initiate a proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uipment in March 2014. In September 2015 the assessee sought to revise the returns and the Assessing Officer declined such permission on the ground that if it is allowed there would be a claim of input tax credit raised. In the third case the assessee filed the audit report under Section 42 along with a re-conciliation statement, wherein the discrepancy noticed on return were sought to be incorporated in the returns by way of revision. The application having been slept over, the assessee was before this Court seeking consideration of the same. In the last case, the Division Bench itself noted more complicated facts insofar as the assessment and penalty were continued without reference to each other. 11. We do not think the facts in the present case commend a permission to file a revised return at this late stage. We also notice Paragraph 15 of the aforesaid decision which is as follows: "15. The enabling provision mandates that on a revision of return being attempted to as provided therein, the Assessing Authority is obliged to accept it. At the risk of repetition, it has to be stated that there is no prohibition in attempting a revision of return after the time specified, if no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s far as the submission of the learned Counsel appearing for the assessee that there is a proper assessment made by the Intelligence Officer we are not convinced prima facie that any estimation has been carried out. The Intelligence Officer had in attempting to find out the correct figures as per the audited report computed the tax evaded so as to determine the penalty; which is a permissible exercise. We hence leave the assessee to a statutory appeal which if filed within one month from today, shall be deemed to be properly filed in time and considered on merits.
14. It is also contended that even as per the audited return; there would be no further tax payable by the assessee. If that is so and there is no further payment of tax required by the assessee then, necessarily the assessee would be entitled to urge before the statutory authority that there is no evasion of tax. We make it clear that we have dismissed the appeal only on the grounds being not available to challenge the impugned order under Article 226 as we found from Gujarat Ambuja Cement Ltd. All other contentions are left open.
Writ appeal would stand dismissed. No order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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