TaxTMI 
TaxTMI 
2015 (3) TMI 177
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....ered proprietor of the trade mark "Nilkamal". It would appear that the said Nilkamal Crates and Containers had also entered into an agreement with M/s.Kaveri Pet and Polyforms (P) Ltd. permitting the said company to manufacture plastic moulded furniture with the trade mark "Nilkamal". Thus, through two separate agreements, entered into with the petitioner as well as Kaveri Pet and Polyforms (P) Ltd., the registered proprietor of the trade mark "Nilkamal", namely, Nilkamal Crates and Containers had arranged their affairs in such a way that moulded plastic furniture with the brand name "Nilkamal" would be manufactured by Kaveri Pet and Polyforms (P) Ltd and thereafter sold to the petitioner who would then distribute the said furniture by way ....
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....s both the persons were brand name holders. The issue as to the dealer, on whom the tax liability had to be fastened in terms of Section 5(2) of the KGST Act, came to be resolved only by 13.1.2010 when, through the judgment in State of Kerala v. Nilkamal Plastics Limited - [[2010] 30 VST 510 (Ker)], a Division Bench of this Court found that in the backdrop of the arrangement referred to above, it would be the petitioner who would be treated as the brand name holder for the purposes of Section 5(2) of the KGST Act and on whom the liability to pay tax would be fastened under the KGST Act. In the present writ petition, the petitioner is aggrieved by an order issued by the respondent imposing a penalty on the petitioner for the assessment year ....
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....terest of the petitioner and therefore could not be relied upon for the purposes of excluding a tax liability on the petitioner. 3. I have heard Sri.M.Pathros Matthai, the learned senior counsel appearing on behalf of the petitioner as also Smt.Lilly.K.T., the learned Government Pleader appearing on behalf of the respondent. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that this is a case where it is not in dispute that in the returns filed for the assessment years 2003-04, the petitioner had declared the entire turnover relating to sales of moulded plastic furniture effected by it and had only claimed exemption of the said turnover in the return by stating it to ....
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.... dispute that in the returns filed by the petitioner for the assessment year in question, he had declared the entire sales turnover in respect of the sales of moulded plastic furniture effected by him and had also claimed exemption by treating the entire sales as second sales for the purposes of the KGST Act. A mere claim for exemption by an assessee, cannot, in my opinion, be treated at par with a suppression of turnover, for the purposes of attracting the penal provisions under the KGST Act. Neither will the mere claim for exemption make the return an incorrect or untrue return for the purposes of attracting the penal provisions under the KGST Act. In an assessment proceedings that has to follow the filing of a return by an assessee, it i....
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.... paragraph 23 which reads as follows: "23. But so far as levy of penalty is concerned, we do not think that the sales tax authorities were justified in levying it. Till the judgment of the Madras High Court, on July 15, 1991, in Perambalur Sugar Mills Ltd. v. State of Tamil Nadu [1992] 86 STC 17, the correct position of law within the State of Tamil Nadu was not free from doubt. Even thereafter, the sales Tax Tribunal had in subsequent orders held that transport subsidy was not includible in the taxable turnover. Such a view was held by the Tribunal till March, 19, 1993. It appears that on bona fide belief that planting and transport subsidies were not includible in the taxable turnover, t....
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.... "Under the Act penalty may be imposed for failure to register as a dealer : section 9(1) read with section 25(I)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perfor....