1993 (11) TMI 221 - HC - Service Tax

Court dismisses tax revision cases, deeming penalty imposition invalid. Turnover not taxable, penalty unnecessary.

Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Versus Ahammed

The Court dismissed the tax revision cases, upholding the decision of the Appellate Tribunal. It found that the penalty imposition directions under ... - Issues:1. Assessment of tax on consignment sale of minor forest produce.2. Imposition of penalty under section 19(2) of the Kerala General Sales Tax Act, 1963.Analysis:1. The respondent, a dealer in minor forest produce, entered into an agreement with the Government for the collection of such produce and consigned goods to a party for sale on a consignment basis. An assessment was completed for the years 1972-73 and 1973-74 without considering the consignment sales. However, based on information from an inspection, the assessment for 1972-73 was reopened, and additional turnover was brought to tax under section 5A. The Appellate Assistant Commissioner initially held that there was no tax liability for the consignment sales under section 5 or 5A. The Commissioner then directed the assessing authority to impose a penalty under section 19(2) for willful suppression of transactions. The Appellate Tribunal later allowed the appeals, stating that the Appellate Assistant Commissioner had no power to direct penalty imposition under section 19(2) while dealing with an appeal by the assessee.2. The Court found it unnecessary to address the question of whether the Appellate Assistant Commissioner had the power to direct penalty imposition under section 19(2). For the assessment year 1972-73, the Appellate Assistant Commissioner determined that the turnover brought to assessment through reopening was not liable for tax under section 5 or 5A. Since there was no escape of turnover justifying the reopening, the condition precedent for penalty imposition under section 19(2) was not met. Therefore, the direction for penalty imposition was outside the purview of section 19(2 and was vacated. Regarding the assessment for 1973-74, the original assessment was not made under section 19 but was based on a modified pre-assessment notice. As section 19(2) did not apply to the original assessment, the direction for penalty imposition for that year was without jurisdiction.In conclusion, the Court dismissed the tax revision cases without any order as to costs, upholding the decision of the Appellate Tribunal and finding that the penalty imposition directions were not valid under the circumstances of the case.