TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 145
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....of Rs. 3,09,370/-. The assessing authority also imposed a penalty of Rs. 6,18,740/- on the petitioner, it being twice the amount of the tax not paid. 4. The petitioner paid the luxury tax pursuant to the order passed by the assessing authority. The petitioner challenged in appeal the order of the assessing authority imposing penalty on it. The appellate authority confirmed the order of the assessing authority imposing penalty on the petitioner but reduced the amount of penalty to Rs. 3,09,370/-. Further appeal filed by the petitioner before the Kerala Agricultural Income Tax and Sale Tax Appellate Tribunal was dismissed. This revision petition is filed challenging the order of the Tribunal. 5. We have heard Sri.Julian Xavier, learned counsel for the petitioner and Sri.V.K.Shamsudheen, learned Senior Government Pleader. 6. Learned counsel for the petitioner has submitted that the assessee was not aware of the amendment made to the Act in the year 2008 bringing hospitals within the purview of the Act. He would submit that non-registration of the hospital under the Act and non-payment of the luxury tax by the petitioner was not intentional. Learned counsel would contend that men....
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....it, assess the proprietor to the best of its judgment. The proviso to Section 6(2) states that before taking action as provided under that provision, the proprietor shall be given a reasonable opportunity of being heard. Section 6(3) of the Act provides that if the luxury tax is not paid within the prescribed period, the assessing authority may levy a penalty equal to a sum not exceeding the amount of luxury tax payable under the Act. Rule 3 of the Kerala Tax on Luxuries Rules, 1976 provides for the manner in which returns have to be filed by the proprietor. Rule 3(4) states that every proprietor registered under the Act and every proprietor liable to get himself registered under the Act and every proprietor who is required to do so by the assessing authority, irrespective of the quantum of his total income, shall, on or before the tenth day of every month, submit to the assessing authority a return as prescribed, together with a receipt of a treasury chalan, crossed cheque or crossed demand draft in favour of the assessing authority for the amount of tax due. 10. Section 17A of the Act reads as follows: "17A. Imposition of penalties by assessing authority.- If an assessing au....
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....on that mens rea is an essential element to impose penalty on an assessee. It has been held in this decision that existence of mens rea or actus reus to contravene a statutory provision must also be held to be a necessary ingredient to levy of damages and/or the quantum thereof. This decision is rendered by a two-Judge Bench of the Supreme court. However, we are bound to follow the subsequent decision of the three-Judge Bench of the Supreme Court in Dharamendra Textile Processors (supra) which holds that mens rea is not an essential element for imposing penalty for breach of civil obligations. 16. Learned counsel for the petitioner has also relied upon the decision of this Court in Mathew M. Thomas v. Sales Tax Officer : 1990(1) KLT 18 to contend that mens rea is an essential ingredient to be proved for imposing penalty on an assessee. It is a case in which legality of 'fine' imposed under Section 17 of the Kerala Tax on Luxuries in Hotels and Lodging Houses Act, 1976 was considered. It was held that Section 17 of that Act dealt with offences and mens rea is an essential ingredient of those offences and assessing authority cannot impose any fine and only a court can impos....
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....ows: "It is sufficient for us to refer to Section 271(1) (a), which provides that a penalty may be imposed if the Income Tax Officer is satisfied that any person has without reasonable cause failed to furnish the return of total income, and to Section 276C which provides that if a person wilfully fails to furnish in due time the return of income required under Section 139(l), he shall be punishable with rigorous imprisonment for a term which may extend to one year or with fine. It is clear that in the former case what is intended is a civil obligation while in the latter what is imposed is a criminal sentence. There can be no dispute that having regard to the provisions of Section 276C, which speaks of wilful failure on the part of the defaulter and taking into consideration the nature of the penalty, which is punitive, no sentence can be imposed under that provision unless the element of mens rea is established. ...... In the case of a proceeding under Section 271(1)(a), however, it seems that the intention of the legislature is to emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In ....