Partly allowed

M/S. Lotus 8A Part Hotels v. State of Kerala

Kerala HC16 Feb 2016OT.Rev/38/2016

Case brief

AI extract

What is this about?

This revision petition challenges the enhanced penalty imposed by the Tax Appellate Tribunal. The High Court modified the Tribunal's order, reducing the penalty under Section 17A of the Kerala Tax on Luxuries Act and Section 45A of the KGST Act.

What did the court decide?

The impugned order of the Tribunal is modified to impose a penalty of ₹30,000 under Section 45A of the KGST Act and ₹2,00,000 under Section 17A of the KTL Act.

M/S. Lotus 8A Part Hotels Vs State of Kerala — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937

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OT.Rev.No. 38 of 2016 ()

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AGAINST THE ORDER/JUDGMENT IN TA 44/2014 of S.T.A.T.ADDL.BENCH,ERNAKULAM DATED 13-08-2015

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REVISION PETITIONER(S):/RESPONDENT

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M/S. LOTUS 8 A'PART HOTELS NEDUMBASSERY REPRESETNED BY ITS AUTHORISED SIGNATORY ADARSH N.MOHAN

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BY ADVS.SRI.P.N.DAMODARAN NAMBOODIRI SRI.P.UNNIKRISHNAN (THRISSUR)

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RESPONDENT(S):/APPELLANT

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STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM.

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BY SMT.SOBHA ANNAMMA EAPEN, SR.GOVERNMENT PLEADER

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THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 16-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O.T.REV.38/16

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APPENDIX

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PETITIONER'S EXHIBITS

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ANNEXURE-A1 : COPY OF PENALTY ORDER NO.ISM/IV/32/2013-14 DATED 31.08.2013 ISSUED BY THE INTELLIGENCE OFFICER, SQUAD NO.IV, MATTANCHERRY AT ALUVA.

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ANNEXURE-AII : COPY OF 1ST APPELLATE ORDER NO.LTA-110/2013 DATED 29.03.2014 ISSUED BY THE DEPUTY COMMISSIONER (APPEALS), ERNAKULAM TO THE PETITIONER.

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ANNEXURE-AIII : COPY OF THE SECOND APPELLATE ORDER IN T.A.NO.44/2014 DATED 13.08.2015 ISSUED BY THE SALES TAX APPELLLATE TRIBUNAL, ERNAKULAM TO THE PETITIONER.

//TRUE COPY//

PA TO JUDGE.

jg-27/2

THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ.

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.................................................................... O.T.Rev.No.38 of 2016

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.................................................................... Dated this the 16^th day of February, 2016.

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O R D E R

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Thottathil B.Radhakrishnan, J.

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1.Proceedings under Section 17A of the Kerala Tax on Luxuries Act,

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1976 was issued to impose penalty on the ground that returns were not duly filed. It is a matter of record that after notices and production of accounts and inspection, tax due has been paid. The authority at the first instance, imposed an amount of 15,00,000/- as penalty. The first appellate authority reduced it to 10,000/-. The second appellate authority, namely the Tribunal, reversed the first appellate authority's decision, at the instance of the Revenue and enhanced the penalty to `3,00,000/-. Though the learned counsel for the revision petitioner attempted to point out that no mens rea was established and penalty could not and ought not to, have, therefore, been imposed, we have not impressed with the submission. The fact of the matter remains that taxes under the

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OTRev.38/16

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-2-

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Act were collected and retained and were paid only after proceedings came, at the instance of the Revenue. We are also of the view that having regard to the amounts involved, the first appellate authority was unjustified in reducing the penalty to 10,000/-. The learned Senior Government Pleader for the Department of Commercial Taxes points out that liability for penalty having been established, it was well within the reasonableness of the Tribunal that it issued an order by which the penalty was kept at 3,00,000/- as against `15,00,000/ordered by the authority at the first instance.

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2.Having bestowed our anxious consideration to the totality of the facts and circumstances of the case and having regard to the amounts involved by way of tax also, we think that ends of justice would be satisfied if the penalty fixed by the Tribunal at 3,00,000/- is trimmed down to 2,00,000/-, which will balance the scales of justice as between the assessee and the Revenue.

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OTRev.38/16

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-3-

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In the result, the impugned order of the Tribunal is modified and it is ordered that imposition of penalty of 30,000/- (Rupees thirty thousand only) under Section 45A of the KGST Act and 2,00,000/- (Rupees two lakhs only) under Section 17A of the KTL Act will meet the ends of justice in the case in hand. The order of the Tribunal and the orders impugned before the Tribunal will stand modified accordingly.

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(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

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(ANU SIVARAMAN, JUDGE)

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jg-16/2

M/S. Lotus 8A Part Hotels v. State of Kerala

Case brief

What is this about?

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M/S. Lotus 8A Part Hotels v. State of Kerala

Case brief

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