2003 (11) TMI 645

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....ing authority, the petitioner filed a revised return on 10.5.85. By Ext. P4 the assessing authority imposed a penalty as he has filed incorrect and incomplete returns with an intention of evading payment of tax, after issuing notice under Section 45A of the Act and calling for his objections. Penalty of Rs. 80,875/- for the year 1982-83 and Rs. 2,16,790/- for the year 1983-84 were imposed. The Board of Revenue reduced the penalty by half for the two years. It is contended that there is no mens rea and therefore, no penalty can be imposed. It is further contended that since there is no best judgment assessment and petitioner was assessed on the basis of the revised return filed by him, no penalty is leviable. Petitioner, in support of that c....

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.... not correct by a Division Bench of this Court in T.K. Balan v. State of Kerala and Ors. (1999) 7 KTR 437 (Ker). The Division Bench held that in order to impose a penalty under Sub-section (2) of Section 19, the assessing authority should have passed an assessment order to the best of its judgment when whole or any part of the turnover of the business of a dealer escaped from assessments and that is the basis of the decision reported in (1971) 28 STC 700. But when the penalty proceedings were initiated under Section 45A, passing of a best judgment assessment is not a condition for imposing penalty for submission of incorrect or untrue return. This Court held as follows: "But the absence of best judgment assessment will not come to ....