N. Subramanya vs Commissioner of Commercial Taxes in Karnataka, Bangalore

K. Shivashankar Bhat, J.-On 4-4-1980, the driver of the petitioner was carrying Geep Dry Cell Bateries in Mysore City. According to the petitioner they were being transported to the godown of the transporter for onward journey to Coorg since the petitioner had the distributing agency only in the District of Coorg. By 9.10 a.m. the vehicle was stopped by the mobile check-post in front of K.S.R.T.C. bus stand, Mysore. Since the driver was not able to produce the documents immediately an order was made under Section 28-A(4) of the Karnataka Sales Tax Act levying penalty of Rs. 5,373/-.

The order states that one Sri Jagadish agreed to pay the penalty proposed.

It was contended by Mr. Kamath before us that there was no such agreement to pay the penalty. The learned Counsel also produced before us the printed form of statement wherein certain entries were made by the check-post Officer. On the said date there is no statement at all recorded to the effect that Jagadish agreed to pay the penalty proposed. In fact we do not find any formal notice being issued to the petitioner calling upon him to produce the records etc.

It was also brought to our notice that petitioner produced several documents before the first Appellate Authority. But the same were not considered on the ground that they were produced belatedly.

This Court has also laid down the principle that in such a situation as involved herein under Section 28-A of the Act, the requisite documents may be produced even before the Appellate Authority and the revenue should not act too technically while rejecting the documents.

The circumstances clearly indicate that there has been a failure of justice and the petitioner had no proper opportunity at all to prove his case. In these circumstances, we set-aside the levy of penalty as well as the order of the Appellate Authority and of the Appellate Tribunal. The matter is remitted back to the first Appellate Authority-Assistant Commissioner of Commercial Taxes (Appeals), Mysore Division for fresh consideration of the case in the light of the documents produced by the petitioner.