Penalty for attempted tax evasion requires conclusive findings, and writ jurisdiction remains available where jurisdictional facts are absent.

Penalty under section 47(6) of the Kerala Value Added Tax Act was unsustainable because the authorised officer had not recorded a conclusive finding, based on materials, that there was an actual attempt to evade tax. The statutory scheme allows detention and security demand on reasonable suspicion under section 47(2), but a separate enquiry under sections 47(5) and 47(6) is required before penalty can be imposed, and mere suspicion, inference, or an unsatisfactory explanation is insufficient. The writ petition was maintainable because the challenge went to the legality of the proceedings and the absence of the jurisdictional facts necessary for penalty.

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Issues: Whether the penalty order under section 47(6) of the Kerala Value Added Tax Act, 2003 was sustainable in the absence of a conclusive finding of attempt to evade tax, and whether the writ petition was maintainable despite the availability of an appellate remedy.

Analysis: Section 47(2) permits detention and demand of security on a reasonable suspicion of attempted tax evasion or on absence of proper documents, while section 47(5) and section 47(6) require a separate enquiry by the authorised officer before any penalty can be imposed. The statutory scheme makes it clear that, at the enquiry stage, penalty can follow only if there is a finding on the basis of materials that there was an actual attempt to evade tax due under the Act. A mere suspicion, inference, or presumption drawn from non-production of documents or from an unsatisfactory explanation is insufficient to satisfy that requirement. The writ petition was held to be maintainable because the challenge was to the legality of the very proceedings and to the absence of jurisdictional facts necessary for imposition of penalty.

Conclusion: The penalty order was unsustainable because no conclusive finding of attempted tax evasion was recorded on the evidence, and the writ petition was maintainable.

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