P.A. James and Brothers vs Commissioner of Commercial Taxes

This is an appeal filed by a business concern from Tamil Nadu against the order of the Commissioner of Commercial Taxes, Thiruvananthapuram issued u/s 37 of the Kerala General Sales Tax Act, 1963. The sales tax authorities noticed from the check-post records that the appellant made sale of jaggery from Tamil Nadu to various dealers in Kerala. However, when notices were issued, the purchasers in Kerala denied the transactions. Since the purchases were denied by the dealers in Kerala, notices were issued to the appellant u/s 30B(4) of the KGST Act asking to prove the sale with the identity of dealers in Kerala. The appellant sought opportunity to cross-examine the purchasers in Kerala. Even though notices were issued, the purchasers did not turn up to give evidence for the appellant.

However, the appellant did not produce any evidence regarding the details of payments received or receipts issued. In other words, transactions could not be proved by the appellant as sales made to the dealers shown in the documents. This lead to levy of penalty on the appellant u/s 30B(4) of the KGST Act. When the appellant filed revision against the orders issued by the assessing officer, the Deputy Commissioner allowed the revision stating that the imposition of penalty u/s 30B(4) is not justified. Accordingly he cancelled the penalty order. The Commissioner of Commercial Taxes in exercise of a suo motu revisional power u/s 37 of the KGST Act reversed the order of the Deputy Commissioner and restored the penalty by holding that the penalty provided u/s 30B(3) of the KGST Act also applies to the proceedings u/s 30B(4) of the Act. The appellant has come up in appeal against this order.

We have heard the counsel appearing for the appellant and the -Government Pleader appearing for the respondent.

In order to appreciate the contentions we have to refer to the relevant clauses in Section 30B of the KGST Act and for easy reference those provisions are extracted below:

30B. Transit of goods through the State and issue of transit pass.- (1) When a vehicle or vessel carrying goods from any place outside the State and bound for any place outside the State passes through the State, the owner or driver or person in charge of such vehicle or vessel shall obtain a transit pass in the prescribed form for such goods from the officer-in-charge of the first check-post after his entry into the State and deliver it to the officer-in-charge of the last check-post before his exit from the State.

(2) If the owner or driver or person in charge of such vehicle or vessel fails to deliver the transit pass for such goods referred to in Sub-section (1) to the last check-post, it shall be presumed that such goods which are liable to tax under this Act have been delivered within the State for sale:

Provided that where the goods carried by such vehicle or vessel are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State, shall be on the owner or driver or person in charge of the vehicle or the vessel, as the case may be.

(3) Where it is presumed under Sub-section (2) that the goods carried in a vehicle or vessel have been delivered within the State for sale by the owner or driver or person in charge of the vehicle or vessel, such owner or driver or person in charge of the vehicle or vessel shall be jointly or severally liable to pay tax which shall be assessed and recovered in accordance with the relevant provisions of this Act, irrespective of the limit of any turnover together with an amount of penalty not exceeding twice the amount of such tax as may be assessed, after having given to the person or persons aforesaid an opportunity of being heard by the assessing authority under whose jurisdiction the check-post is situate.

(4) Where any person consigns any goods or transports any goods from another State into the State and where the particulars furnished in the declaration prescribed in Clause (b) of Sub-section (2) of Section 29 are false or the consignor or purchaser stated therein is found to be bogus or non-existent or is not traceable or denies such purchase, it shall, unless the consignor or the owner of the vehicle or the person in charge of the vehicle proves to the satisfaction of the assessing authority that the particulars furnished in the declaration are true, be presumed that such goods which are liable to tax under this Act have been sold in the State by the consignor or the owner of the goods or the owner or driver or person in charge of the vehicle or the person in charge of the goods or all of them jointly and they shall be jointly or severally liable to pay tax on such sales which shall be assessed and recovered in the manner provided in Sub-section (3).

For the purpose of this section, the owner or driver or person in charge of the vehicle or vessel shall, unless he is a registered dealer under this Act, be deemed to be a registered dealer for assessment of tax under this Act.

The question arising for consideration is whether penalty can be levied along with tax or independently u/s 30B(4) of the KGST Act. The case of the petitioner is that in the absence of specific provision providing for penalty u/s 30B(4) of the KGST Act penalty cannot be levied in proceedings initiated for levy of tax under the said provision. However, on the other hand the Government Pleader submits that Clause (3) of Section 30B provides for levy of penalty along with tax and so much so penalty can be levied along with tax on dealers like the petitioner assessed u/s 30B(4) of the Act. Sub-section (2) of Section 30B provides that, if the owner or driver or person in charge of such vehicle or vessel fails to deliver the transit pass for such goods referred to in Sub-section (1) to the last check-post, it shall be presumed that such goods which are liable to tax under this Act have been delivered within the State for sale. Clause (3) of Section 30B provides for the levy of tax and penalty on the owner, driver or person in charge of vehicle or vessel used for the transport of the goods against whom presumption of sale of goods in the State is available under Clause (2) of Section 30B. What is stated in Sub-clause (3) is that tax in such cases has to be levied, assessed and recovered in accordance with the relevant provisions of the Act irrespective of the turnover limit that attracts tax. It is further provided therein that along with tax penalty not in excess of twice the amount of tax also should be levied and recovered. Sub-section (3) of Section 30B is therefore not only a procedural provision but is also a substantive provision authorising levy and recovery of tax and penalty. Penalty is mandatory under Sub-section (3) and the discretion left with the officer is only on quantum of penalty; the maximum being twice the amount of tax. Penalty under Clause (3) of Section 30B should be levied in accordance with the provisions of Section 45A of the Act. So far as Clause (4) of Section 30B is concerned, the principle therein is similar to that contained in Section 30B(2) of the Act. While Clause (2) provides for a presumption of liability on the person who fails to surrender the transit pass at the check-post, Clause (4) authorises presumption of local sale in the State by the dealer who transports the goods from outside the Kerala State to Kerala but fails to prove the nature of transaction in Kerala. What is stated in Clause (4) is that a dealer transporting goods to Kerala on failing to prove the transaction will be liable to pay tax under the Act in Kerala. The principle contained in both Clauses (2) and (4) of Section 30B are one and the same because levy of tax is not on actual sales but based on presumption permissible under the said provisions. The balance is only the procedure for assessment of tax and levy of penalty. Both the persons covered by Clauses (2) and (4) of Section 30B are liable to pay tax and penalty payable u/s 45A of the Act. Instead of repeating all what is stated in Clause (3), Clause (4) incorporates Clause (3) as such. In other words, the person against whom tax is assessed under Clause (4) of Section 30B can be subjected to penalty in the same manner it is provided under Clause (3).

We, therefore, find that the Deputy Commissioner committed an error in holding that penalty cannot be levied in proceedings u/s 30B(4) and the Commissioner rightly reversed the order in suo motu proceedings. Even though the counsel for the petitioner requested remand of the matter for consideration of quantum of penalty by the Commissioner, having regard to the penalty amount we do not think it is a fit case for that purpose. We therefore reject the plea.

The appeal, therefore, fails and it is accordingly dismissed.