TaxTMI 
TaxTMI 
2007 (5) TMI 213
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....facture and sale of insulated electrical cable. It is registered under the Kerala General Sales Tax Act, 1963 (for short, "the Act"). Assessment proceedings in respect of the assessment years 1995-96 and 1996-97 were completed relying upon or on the basis of the books of account maintained by it. An inspection, however, was carried out in the premises of the appellant. A certain amount of unaccounted production and sale of goods was found. The appellant admittedly took recourse to the provisions of the said Scheme. Declaration made by it thereunder was accepted. By an order dated January 14, 2003, the earlier assessment order was set aside. The appellant filed an appeal before the Kerala Sales Tax Appellate Tribunal. The matter was remitted to the Deputy Commissioner for its re-examination. By an order dated May 20, 2003, the assessment in respect of the assessment year 1996-97 was set aside. The said authority directed reassessment for the year 1995-96 by an order dated November 7, 2003. Questioning the said orders, appeals were filed by the appellant before the Tribunal which by reason of a common judgment dated December 21, 2005, were dismissed. Two sales tax revisions wer....
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....and imposition of penalty in certain cases.- The designated authority shall, subject to the conditions provided in section 90, grant immunity from instituting any proceeding for prosecution for any offence under any direct tax enactment or indirect tax enactment, or from the imposition of penalty under any of such enactments, in respect of matters covered in the declaration under section 88." What is conclusive is the order passed under sub-section (1) of section 90 of the Scheme determining the sum payable under the Scheme. The terms "direct tax enactment" or "indirect tax enactment" or "any other law for the time being in force" refer only to those statutes under which the order had been passed. Immunity, as noticed hereinbefore, is in respect of institution of any proceeding for prosecution of any offence under direct tax enactment or indirect tax enactment or from imposition of penalty under any of such enactments. The terms "direct tax enactment" and "indirect tax enactment" have been defined under section 87(h) and 87(j) of the Scheme, which read as under: "(h) 'direct tax enactment' means the Wealth-tax Act, 1957 (27 of 1957) or the Gift-tax Act, 1958 (18 of 1958) or t....
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....ance placed on clause (3) of article 286 of the Constitution of India, in our opinion, is misplaced. The said provision reads, thus: "(3) Any law of a State shall, in so far as it imposes, or authorises the imposition of,- (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or sub-clause (d) of clause (29A) of article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify." The said provision had to be enacted in view of the decision of this court in Bengal Immunity Co. Ltd. v. State of Bihar [1955] 2 SCR 603. Indisputably in exercise of the said power, Parliament has the requisite legislative competence but therefor a specific law is required to be enacted. The Act in question neither is referable to clause (3) of article 286 of the Constitution of India nor sub-clauses (c) and (d) of clause (29A) of article 366 thereof. It provides only for tax on the sale or purcha....
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....ssed under sub-section (1), determining the sum payable under this Scheme shall be conclusive as to the matters stated therein and no matter covered by such order shall be reopened in any other proceeding under the direct tax enactment or indirect tax enactment or under any other law for the time being in force. Sub-section (4) of section 90 of the said Scheme provides that where the declarant has filed an appeal or reference or a reply to the show-cause notice against any order or notice giving rise to the tax arrear before any authority or Tribunal or court, then, notwithstanding anything contained in any other provisions of any law for the time being in force, such appeal or reference or reply shall be deemed to have been withdrawn on the day on which the order referred to in sub-section (2) is passed... 27. On a reading of the judgment in the case of Sushila Rani, it is clear to us that if an assessee takes the option under this Scheme, he obtains immediate immunity under any proceeding under any and all laws in force. As such the present proceedings initiated under section 120B read with section 420 of the Indian Penal Code are bad and ought to have been quashed with immedi....
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....EPOSA Act. Therefore, it is contended that the detention order issued by the detaining authority is very much legal and the same needs to be upheld. The Settlement Commission was constituted with the aim and objective of settling the tax evasion issues and by virtue of disclosure by tax offender; they gain immunity from fine/penalty which is otherwise mandatory under the provisions of tax laws. But such opportunity is only extended to one time tax offender but not available to habitual smugglers. For the persons involved in smuggling activities, other than the provisions made for the prosecution under the Customs Act, 1962, an equal deterrent is emphasized under the provisions of the COFEPOSA Act, 1974, i.e., provisions for preventive detention. Such preventive detention prohibits smugglers from indulging in further smuggling activities. In the present case the investigation reveals the consistent involvement of the petitioner-detenue and his brother Kamlesh Navinchandra Shah in smuggling activities. Therefore, the detaining authority on the basis of evidence placed before him felt it necessary to issue the detention orders in respect of both the detenues in order to prevent the....