High Court Kerala High Court

M/S.J&J Timbers vs The Intelligence Officer(Ib) on 6 October, 2008

Kerala High Court
M/S.J&J Timbers vs The Intelligence Officer(Ib) on 6 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 2000 of 2008()


1. M/S.J&J TIMBERS, 23/418, MAIN ROAD,
                      ...  Petitioner

                        Vs



1. THE INTELLIGENCE OFFICER(IB)
                       ...       Respondent

2. THE ASSISTANT COMMISSIONER(ASSMT.)

3. THE COMMISSIONER OF COMMERCIAL TAXES,

                For Petitioner  :SRI.M.CHANDRASEKHARAN (SENIOR)

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :06/10/2008

 O R D E R
            H.L.DATTU, C.J. & THOMAS P.JOSEPH, J.
               ------------------------------------------------------
                            W.A.No.2000 of 2008
                  ----------------------------------------------
                Dated, this the 6th day of October, 2008

                                 JUDGMENT

H.L.Dattu, C.J.

This writ appeal is directed against the orders passed by the

learned Single Judge in W.P.(C) No.26857/2008 dated 16th September,

2008. By the impugned order the learned Single Judge has rejected the

writ petition.

2. In the writ petition filed, the petitioner has called in

question Exts.P4 and P7 notices issued by the first respondent,

Intelligence Officer (IB), Investigation Branch, Department of

Commercial Taxes, Kollam, in exercise of the powers under Section

45A of the Kerala General Sales Tax Act, 1963 (for brevity and

convenience, hereinafter referred to as “Act of 1963”).

3. The subject matter of Ext.P4 notice is evasion of tax by

the petitioner by making bogus claim of sale of timber at concessional

rate without any actual sale of timber to the form 18 suppliers – M/s.J and

J Timbers, Chalakudy and the penalty proposed for the years 2001-02 to

2004-05. In the lengthy notice issued, the Intelligence Officer has

narrated in detail the reasons and his tentative opinion for initiating

penalty proceedings and then has directed the assessee to offer its

explanation, if any.

W.A.2000/2008 -2-

4. After receipt of the notice, the assessee has filed its

objection, denying the accusation made in the notice and further has

requested to drop the proposed proceedings.

5. The Intelligence Officer after receipt of the reply and

after considering the same, by reiterating his earlier proposal made, has

issued Ext.P7 notice and further has granted an opportunity to produce

evidence, if any, to the petitioner in support of his defence/explanation in

the reply filed to Ext.P4 notice.

6. It is the legality or otherwise of the show cause notice is

called in question by the assessee by filing the writ petition. As we have

already noticed, the learned Single Judge has rejected the writ petition.

It is the correctness or otherwise of the said order is the subject matter of

this writ appeal.

7. Sri.Chandrasekharan, learned Senior Counsel would

contend, that, the appellant is an assessee on the files of Assistant

Commissioner (Asst.), Special Circle, Thrissur, who is an officer higher

grade than the officer who has initiated penalty proceedings under

Section 45A of the KGST Act and the assessments for the assessment

years 2000-2001 to 2004-05 are pending before the assessing authority

and the assessing authority alone can make assessment and impose

W.A.2000/2008 -3-

penalty, if any. Secondly, the learned counsel would contend, even

before the final assessment could be completed, his power of assessment

cannot be usurped by the Intelligence Officer who has initiated

proceedings under Section 45A of the Act, by taking decision on the

correctness or otherwise of Form 18 declarations. These are the only two

submissions of the learned Senior Counsel at the time of hearing the

appeal for “admission”, though several other grounds are taken in the

memorandum of writ appeal filed.

8. Chapter V of the Act provides for assessment, collection

and penalty of tax under the Act. Chapter VII of the Act deals with

offences and penalties. It is settled law in so far as KGST provisions are

concerned, that, the proceedings under Chapter V and proceedings under

Chapter VII of the Act are different and distinct. It would be useful now

to refer to Section 45A of the Act which falls within Chapter VII. The

said provision is as under:

“45A. Imposition of penalty by officers and

authorities (1) Notwithstanding anything contained in

section 46 if the assessing authority or the Appellate

Assistant Commissioner is satisfied that any person,

(a) being a person required to register himself

as dealer under this Act, did not get himself

registered; or

W.A.2000/2008 -4-

(b) has failed to keep true and complete

accounts; or

(c) has failed to submit any return as required

by the provisions of this Act or the rule made

thereunder; or

(d) has submitted an untrue or incorrect return;

or

(e) has failed to comply with all or any of the

terms of any notice or summons issued to him by or

under the provisions of this Act or the rules made

thereunder; or

(f) after purchasing any goods in respect of

which he has made a declaration under proviso to

sub-section (3) of Section 5, has failed to make use of

the goods for the declared purpose; or

(g) has acted in contravention of any of the

provisions of this Act or any rule made thereunder,

for the contravention of which no expression

provision for payment of penalty or for punishment is

made by this Act;

(h) or has abetted the commission of any of the

above offences,

such authority or officer may direct that such

person shall pay, by way of penalty, an amount not

exceeding twice the amount of Sales Tax or other

amount evaded or sought to be evaded, where it is

practicable to quantify the evasion or an amount not

W.A.2000/2008 -5-

exceeding ten thousand rupees in any other case.

Explanation I: The burden of proving that any

person is not liable to the penalty under this Section

shall be on such person.

Explanation II: Fort he purposes of this

sub-section the expression “assessing authority”

includes any officer not below the rank of a Sales Tax

Officer specified by the Government in this behalf by

notification in the gazette.

(2) No order under sub-section (1) shall be

passed unless the person on whom the penalty is

proposed to be imposed is given an opportunity of

being heard in the matter.”

9. The Section commences with a non-obstante clause. It

says, that notwithstanding anything contained in Section 46 of the Act,

the assessing authority or the Appellate Assistant Commissioner, if he is

satisfied that any person who has committed any offences specified

under clauses (a) to (h), may direct such person to pay penalty not

exceeding twice the amount of sales tax or other amount evaded or

sought to be evaded, where it is practicable to quantify the evasion of tax

or an amount not exceeding ten thousand rupees in every other case.

10. Explanation I appended to Section casts the burden on

the dealer that he is not liable to the penalty under Section 45A of the

W.A.2000/2008 -6-

Act.

11. Explanation II appended to the Section defines the

meaning of expression “assessing authority”. It is an inclusive

definition. In view of this explanation, “assessing authority” includes

any officer not below the sales tax officer specified by the Government

in this behalf by issuing a notification in the official gazette. It is not in

dispute nor it can be disputed that the Intelligence Officer is also treated

as an “assessing officer” for the purpose of Section 45A of the Act.

12. While interpreting taxing statutes, it is often said, the

courts should always keep in mind the purpose of the Act and the object

of particular section. The courts should always seek to find out the

intention of the legislature and this can be done by referring to the

language used in the statute itself.

13. Section 45A of the Act, provides for imposition of

penalty by officers and authorities under the Act, if those authorities are

satisfied that any person, being a person required to register himself as a

dealer under the Act, but has not registered himself, has failed to keep

true and complete accounts, has failed to submit any returns as required

under the Act or the Rules framed thereunder, etc. may impose a penalty.

Since penalty proceedings are quasi criminal proceedings, the imposition

W.A.2000/2008 -7-

of penalty can be done only after a show cause notice to the assessee and

after affording an opportunity of hearing. The proceeding contemplated

by Section 45A has nothing to do with the jurisdiction of the assessing

authority. Merely because the assessment proceedings are pending for

several years, it does not preclude the Intelligence Officer of the

Department to initiate proceedings under Section 45A of the Act. These

proceedings in our view, need not have to wait till the regular assessment

proceedings are completed by the assessing officer. The proceedings

under Section 45A can be initiated and continued by an officer who has

been authorised by the Government in this behalf by notification in the

Gazette. Therefore, it cannot be said that the Intelligence Officer has no

jurisdiction to initiate 45A proceedings during the pendency of regular

assessment proceedings before the assessing officer, since penalty is

imposed on a person on account of the commission of wrongful act and

secondly, penalty proceedings are distinct and different from assessment

proceedings and thirdly, findings in the assessment proceedings are not

conclusive and the findings therein would only be a piece of evidence

and the authority authorised to impose penalty should consider the entire

material afresh before imposing penalty.

14. We sum it up by observing that the penalty

W.A.2000/2008 -8-

proceedings is an independent proceedings and is initiated to punish the

violation of the statutory provision by a person and merely because the

assessment proceedings are pending before a superior officer, it is not a

bar for the intelligence officer, who has been authorised by the

Government by issuing a notification in the Gazette to initiate and

complete the proceedings under Section 45A of the Act.

15. We are only at the stage of show cause notices issued

by the first respondent. In our opinion, the writ court can entertain a

petition, if for any reason, the authority who has issued the notice has no

competence to issue such notice or the notice issued is contrary to the

statutory provisions etc,. These grounds are neither urged nor argued

by the writ petitioner. Under the rule requiring exhaustion of remedies

provided under the Act, prior to judicial review by this court, a party may

not ask a court to rule on an adverse decision of a statutory authority

until he has availed himself of all possible remedies provided under the

statute itself. The major purpose of exhaustion doctrine is to prevent

the courts from interfering with the administrative process by statutory

authorities until they have reached a conclusion.

16. The Supreme Court has stated the reasons why it is

desirable to the writ court not to disturb statutory proceedings. Because

W.A.2000/2008 -9-

taxing statutes often vest with the statutory authorities with exclusive

procedures, it is that statutory authority which is initially responsible for

interpreting and applying its own statute. Failure to exhaust statutory

remedies deprives the court the benefit of the statutory authorities

experience in exercising administrative discretion as well as a factual

record to review. The authorities under the Act are created for the

purpose of applying the statute in the first instance. Accordingly, it is

normally desirable to let all statutory authorities develop the necessary

factual background upon which decision should be based. And since the

decision of the statutory authorities frequently require expertise, the

authorities should be given the first chance to exercise their discretion

and further apply their expertise. Apart from this, the statutory

authorities are created as a separate entity and is vested with certain

powers and duties, the courts ordinarily should not interfere with the

action of the statutory authorities until it has completed its own action or

else has clearly exceeded its jurisdiction. We hasten to add, the

exhaustion doctrine is not inflexible and when the reasons supporting the

doctrine are found inapplicable, the doctrine should not be blindly

applied.

17. In view of the above, the learned Single Judge has not

W.A.2000/2008 -10-

committed any error, whatsoever, which would call for our interference.

Accordingly, the writ appeal requires to be rejected and it is rejected,

without reference to the respondents.

Ordered accordingly.

(H.L.DATTU)
CHIEF JUSTICE

(THOMAS P.JOSEPH)
JUDGE

MS/dk