State Of Kerala vs State M/S Lunettes Trading

Bechu Kurian Thomas, J

The revenue has come up in revision challenging the order of the Tribunal on the question raised inter alia as to whether the Tribunal was correct in

having found there was no attempt of evasion of tax by the assessee.

The question of law arises from an order of the penalty imposed under Section 47(6) of the Kerala Value Added Tax Act, 2003 (for short, 'the

KVAT Act'). The Intelligence Officer had intercepted transport of optical frames in the assessee's own vehicle, while it was enroute on root from his

residence to his shop on 19.09.2006. Assessee claimed the optical frames in question to have been imported with bills by the officer. The penalty was

imposed on the ground that the goods in question were not accompanied by the documents prescribed under the KVAT Act. The assessing officer

imposed a penalty of Rs.40,215/- after rejecting the explanation of the assessee that the goods were transported from Cochin Airport to Koylandi and

that by the time it reached Koylandi, it was very late into the night and hence the goods were taken to the assessee's residence to be brought back on

the next day morning and that the goods were intercepted while being brought from his residence to his shop.

The assessee took up the matter in appeal. However, the Appellate Authority refused to interfere. In the second appeal before the Tribunal, it was

held that the Intelligence Officer, after enquiry, could not establish that there was any attempt to evade the tax. The Tribunal also relied upon the fact

that the transaction was an import, not liable to tax under the KVAT Act and also that the payment which was wholly accounted for was done

through bank. The Tribunal further held that the rejection of explanation offered by the assessee was without any valid reasons and also that the

Intelligence Officer could not establish any attempt to evade tax.

The Tribunal as a fact finding authority has set aside the imposition of penalty after factually entering into a finding that there was no attempt to

evade tax. When the final fact finding authority concludes there was no attempt to evade tax, in the absence of any material to show that the said

finding was perverse or baseless, we are of the view that the questions of law raised by the revenue does not arise for consideration in the case.

In the circumstances we decline to answer the questions of law raised and this revision petition is dismissed.