Dismissed

State of Kerala v. M/S.Grand Auditorium

Kerala HC5 Oct 2016WP(C)/14524/2011

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the writ petition challenging the reduction of penalty by the Tax Tribunal. The court found no perversity or illegality in the Tribunal's order reducing the penalty to a nominal sum due to the respondent's lack of wilful neglect regarding registration requirements.

What did the court decide?

The writ petition is dismissed; the order of the Tribunal reducing the penalty to `5,000/- is affirmed.

State of Kerala Vs M/S.Grand Auditorium — Cheque Dishonour | 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 A.M.SHAFFIQUE

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WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938

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WP(C).No. 14524 of 2011 (M)

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PETITIONER:

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STATE OF KERALA, REP. BY DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM.

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BY GOVT. PLEADER SRI.MURALEEDHARAN NAIR

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RESPONDENT:

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M/S GRAND AUDITORIUM, MANIKOTH, PIN - 671 329, KANHANGAD, KASARAGOD DISTRICT.

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BY ADVS.SMT.K.HYMAVATHY SRI.N.MURALEEDHARAN NAIR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 14524 of 2011 (M)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT. P1 : TRUE COPY OF THE ORDER OF PENALTY DATED 7.11.2008 FOR THE YEAR 2007-08.

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EXT. P2 : TRUE COPY OF THE ORDER OF PENALTY DATED 7.11.2008 FOR THE YEAR 2008-09.

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EXT. P3 : TRUE COPY OF THE ORDER DATED 22.3.2010. EXT. P4 : TRUE COPY OF THE COMMON ORDER OF THE APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE IN TA NOS.46 & 47 OF 2010 DATED 6.12.2010.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.M. SHAFFIQUE, J.

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=============== W.P. (C) No. 14524 of 2011

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==================

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Dated this, the 5^th day of October, 2016

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J U D G M E N T

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Petitioner challenges Ext.P4, an order passed by the Tribunal interfering with an order of penalty especially in regard to the quantum. The facts involved in the writ petition would disclose that after conducting an inspection in the premises of the respondent, on finding that the respondent had not applied for registration, penalty proceedings were taken for the years 2007-08 and 2008-09. The Intelligence Officer imposed penalty on double the rate of tax sought to be evaded. Respondent preferred an appeal. The appellate authority reduced the penalty to the amount equal to the tax sought to be levied. The matter was carried in a further appeal before the Tribunal by the respondent. The Tribunal reduced the penalty amount to `5,000/- each for both the years 2007-08 and 2008-09. While considering the appeal, the Tribunal observed that the respondent had applied for registration on 30/6/2008 and he had obtained registration on 12/10/2008 as evident from the letter issued by the Intelligence Officer. The said aspect has not been

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W.P(C) No.14524/11

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taken note of by the officer while issuing the penalty order and therefore taking into consideration the factual circumstances, the penalty had been reduced.

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While impugning the order passed by the Tribunal, learned Government Pleader submits that there is laches on the part of the respondent in taking registration under the Kerala Tax on Luxuries Act, 1976 and therefore the Intelligence Officer was justified in imposing the penalty, which has been modified by the appellate authority. The Tribunal committed serious error of law in reducing the penalty to a minimum amount of `5,000/- each for the respective years. It is stated that there is no valid reason to reduce the quantum of penalty.

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On the other hand, learned counsel appearing for the respondent supported the stand taken by the Tribunal. It is stated that the respondent was totally unaware of the requirement to have registration under the statute. However, only after inspection was conducted in the premises that such matters came to the notice of the respondent and thereafter an application was filed and registration was also obtained. It is submitted that there was no wilful neglect on the part of the respondent whereas the

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W.P(C) No.14524/11

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respondent was not aware of the necessity for taking registration which resulted in the order passed by the assessing officer as well as the appellate authority. It is submitted that the Tribunal having taken note of the bona fides of the respondent had reduced the quantum of penalty and there is no necessity why this Court should interfere with the said finding.

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Having heard the learned Government Pleader as well as the learned counsel appearing for the respondent, I do not think that this is a fit case in which this Court should interfere with the quantum of penalty imposed by the Tribunal. Tribunal of course can interfere with the penalty imposed by the appellate Tribunal, but sufficient reasons are to be stated. Reasons now stated may not be appealable and still while exercising power of judicial review, I do not think that this Court should interfere with the same and take a different view altogether. I do not find any perversity in the order which requires interference by this Court nor any illegality is pointed out. True that the application for registration is filed only on 30/6/2008 though inspection was conducted by issuing notice as early as on 16/10/2007. Even then, taking into consideration the fact that the Tribunal had

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W.P(C) No.14524/11

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exercised its discretionary power to reduce the penalty, I do not think that this Court will be justified in taking a different view.

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Writ petition is, therefore, dismissed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Rp6/10/2016

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//True Copy//

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P.S to Judge

State of Kerala v. M/S.Grand Auditorium

Case brief

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State of Kerala v. M/S.Grand Auditorium

Case brief

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