M/S.Wheels vs State Of Keral on 22 July, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 8552 of 2004(R)


1. M/S.WHEELS, DNM ROAD, CHEMBUKAVU,
                      ...  Petitioner

                        Vs



1. STATE OF KERAL, REPRESENTED BY THE
                       ...       Respondent

2. THE ASSISTANT COMMISSIONER (ASSMT) II,

3. THE DEPUTY COMMISSIONER, COMMERCIAL

4. THE COMMISSIONER, COMMERCIAL TAXES,

                For Petitioner  :SRI.TOMY EAPEN

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR

 Dated :22/07/2008

 O R D E R
                       C.N.RAMACHANDRAN NAIR, J.
                  ....................................................................
                             W.P.(C) No.8552 of 2004
                  ....................................................................
                    Dated this the 22nd day of July, 2008.

                                         JUDGMENT

Heard counsel for the petitioner. The petitioner is challenging

Ext.P3 order whereunder the Commissioner of Commercial Taxes dismissed

revision petition filed by the petitioner against levy of penalty. In first

revision, the Deputy Commissioner reduced the penalty to 25% of the

amount levied by the officer. The contention of the petitioner is that penalty

levied is only for belated payment of advance tax due for March 2002.

Counsel contended that in the absence of finding on evasion of tax, the

maximum penalty that could be levied under Section 45A of the KGST Act

is only Rs.5,000/-. Government Pleader on the other hand contended that

Rule 21C is mandatory in nature and if 90% advance tax is not paid before

the due date, i.e. on or before 31st March of the year, there is violation and

penalty upto double the amount can be levied under Section 45AA of the

Act. This court has taken the view that belated payment of advance tax

defeats the very purpose of provision for payment of advance tax. In this

case explanation of the petitioner is that substantial sales were after

25.3.2002 and therefore, petitioner could not pay the advance tax reckoning

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the high turnover achieved towards the end of March. However, petitioner

has not explained why petitioner could not remit balance advance tax by

30th or 31st of March itself. I do not find any justification to interfere with

the penalty because violation is admitted and first revisional authority has

reduced the penalty to 25%. Even though Section 45AA is not mentioned;

this is a case where violation is both under Section 45A as well as Section

45AA of the Act. Therefore, there is no scope for interference, more so

because substantial reduction is granted in first revision. The W.P. is

therefore dismissed.

C.N.RAMACHANDRAN NAIR
Judge
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