TaxTMI 
TaxTMI 
2010 (9) TMI 974
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....he order imposing penalty under section 45A(1) of the Kerala General Sales Tax Act, 1963, when the relevant notification issued in this regard stipulates payment of such additional court fee only in respect of "appeals/revisions". The sequence of events as narrated in both the writ petitions shows that, the petitioner was imposed with penalty under section 45A(1) of the KGST Act, in respect of the assessment years 2003-04 and 2004-05, fixing a total liability of nearly 1.36 crores. Being aggrieved of the same, the petitioner preferred an "application" before the second respondent, as provided under sub-section (3) of section 45A, seeking for immediate interference, which was refused to be entertained for not having satisfied the addition....
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....t it to the notice of this court that, during the pendency of the above proceedings, the Government declared the "Amnesty Scheme" and availing of the benefit thereunder, the liability has already been settled, however without prejudice to the challenge already raised in respect of the extent of penalty imposed by pursuing the matter before the third respondent/Commissioner, besides the issue with regard to the liability to pay additional court fee. The learned counsel submits that, the issue involved in both these writ petitions will stand confined to the justifiability of demanding the "additional court fee" to have entertained the "applications" preferred under sub-sections (3) and (5) of section 45A. Heard the learned Governmen....
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....006] 144 STC 476; [2005] 3 KLT 1052. Referring to the contents of the above notification and also the conclusion reached by this court as contained in the concluding paragraph, it is contended that imposition of such additional court fee/realization of the such additional court fee is contemplated only in "appeal/revision", that too, in the case of "assessment orders", whereas in the instant case, the concerned proceedings filed before respondent Nos. 2 and 3 are never by way of any appeal or revision but an "application " as specifically provided under sub-sections (3) and (5) of section 45A. It is also stated that, the remedy by way of "appeal/revision" has been dealt with under Chapter VII of the Kerala General Sales Tax Act; while the e....
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....lip S. Dahankur v. Kotak Mahindra Co. Ltd. [2007] 6 SCC 528 (paragraph 54) and also in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. [2007] 8 SCC 705 (paragraph 88 onwards). The learned Government Pleader further submits that the conclusion made by the learned single judge of this court in the last paragraph of the decision reported in A. P. Ismail (Anwar Traders) v. State of Kerala [2006] 144 STC 476; [2005] 3 KLT 1052, (serial No. iii) is not correct or sustainable, fixing the scope and extent of the notification in respect of the assessment years commencing only from April, 2002 and that the aggrieved party, i.e., trustee committee of the legal benefit fund has already preferred an appeal before this co....
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....like the power for rectification of the error or the power of review, the "application" as mentioned in sub-sections (3) and (5) of 45A is to be filed, not before the "original authority" but before the "higher authority/still higher authority". The Scheme of the statute shows that, if anybody is aggrieved of the order imposing penalty under section 45A(1), the next course is to file the appropriate proceeding before the Deputy Commissioner under sub-section (3) and if still aggrieved, the party is at liberty to approach the Commissioner, who is still the higher authority, under sub-section (5). This shows that the power being exercised by the said "higher authority " is not in the course of any "original power", but by virtue of the power ....
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....s/revisions arising from assessment orders issued in relation to and from the assessment year in which the said notification was issued on April, 5 2002 (emphasis(1) supplied). In view of the said observation, it is contended that such additional court fee can be realized only in respect of the "assessment orders " and no such additional court fee is payable by the petitioner since the impugned order is not an assessment order, but an order imposing "penalty". The primary question to be considered is, whether the said observation is with reference to the specific question or point raised in this regard. Going by the discussion in the verdict, it is evident that no such point was ever mooted before the learned single judge, seeking to dra....