2015 (10) TMI 2632

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....who constructs apartments in land owned by him, and sells the finished apartments, as per agreements, to various buyers on terms and conditions stipulated in the agreement for sale. In the writ petition, the petitioner is aggrieved by Exts.P9 and P10 orders of penalty that were passed against the petitioner under Section 67 (1) (d) of the Kerala Value Added Tax Act, hereinafter referred to as the KVAT Act. The essence of the contentions in the writ petition is that the respondent Intelligence Officer had, while passing Exts.P9 and P10 orders, merely followed the decision of the Hon'ble Supreme Court in the case of K. Raheja Development Corporation v. State of Karnataka [2005 (5) SCC 162] without going into the factual aspect of the case....

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.... deserve to be quashed for that reason alone. I also find however, that there is no consideration by the respondent Intelligence Officer, of the aspect of whether the petitioner had willfully evaded payment of tax that was due and payable by him. This aspect assumes importance in matters of penalty because, the decision of the Supreme Court in E.I.D. Parry (1) Ltd. v. Assistant Commissioner of Commercial Taxes and Another [2000 (Vol.117) STC 457] clearly mandates that, before imposition of a penalty on an assessee, the authority concerned must be satisfied of the existence of the necessary mens rea as would attract the penal provisions under the Act. In particular, it was stated by the Supreme Court that, if the correct position of law was ....