## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
## **&**
**THE HONOURABLE MR. JUSTICE GOPINATH P.**
**TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942**
**OT.Rev.No.83 OF 2015**
**AGAINST THE ORDER/JUDGMENT IN TAVAT 889/2013 DATED 28-11-2014 OF VALUE ADDED TAX APPELLATE TRIBUNAL,ADDITIONAL BENCH,PKD**
## **REVISION PETITIONER/APPELLANT/ASSESSEE:**
**M/S.GAYATHRI MOTORS VISWAM ARCADE, NH 47, PIRIVUSALA, CHANDRANAGAR, PALAKKAD, REPRESENTED BY ITS MANAGING PARTER V.GIRISH.**
**BY ADVS. SRI.HARISANKAR V. MENON SRI.MAHESH V.MENON**
## **RESPONDENT/RESPONDENT/STATE:**
**STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM 695 001.**
## **R1 BY GOVERNMENT PLEADER**
## **OTHER PRESENT:**
**SRI. MOHAMMED RAFIQ- SR. G.P,- TAXES**
**THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 1303-2020, THE COURT ON 19-05-2020 PASSED THE FOLLOWING:**
**OT.Rev.No.83 OF 2015 2**
## **JUDGMENT**
**[O.T.REVN NO.83 OF 2015]**
**Dated this the 19th day of May 2020**
## _**Gopinath**_ **,** _**J**_
This revision petition is filed challenging the order of the Kerala Value Added Tax, Additional Appellate Tribunal, Palakkad in TA (VAT) 889/2013 through which the Appellate Tribunal reversed the finding of the first Appellate Authority that no penalty need be imposed on the revision petitioner. The Tribunal found that Annexure-A order of the Intelligence Officer, Squad No.III, Department of Commercial Taxes, Palakkad, was correct in law and required no interference at the hands of the first Appellate Authority.
## **OT.Rev.No.83 OF 2015 3**
2. The brief facts of the case are that the
revision petitioner is an authorised distributor
for Hero Honda Motor Cycles and an assessee under the provisions of the Kerala Value Added Tax Act, 2003 (for short KVAT Act). On 2.11.2007 a vehicle
carrying 8 motor cycles was intercepted by the Intelligence Inspector, Squad No.III, Commercial Taxes, Palakkad. On inspection, it was noticed that the motor cycles were being transported under cover of delivery notes which were not accompanied by other documents, such as invoice, which are mandatory u/s.46 of the KVAT Act. It is the case
of the petitioner that this was a genuine mistake at the hands of the driver of the vehicle carrying the motor cycles and that the motor cycles were sold to a dealer named M/s. Wheels Automobiles in Trichur. It is stated that the vehicle carrying the
## **OT.Rev.No.83 OF 2015 4**
goods was intercepted very near to the business premises of the revision petitioner and immediately the necessary documents were brought and produced before the Intelligence Inspector. The Intelligence Inspector however, allowed the transport of the goods only on payment of security of Rs.1,00,000/-. Thereafter, vide Annexure-A order a penalty of Rs.1,00,000/- has been imposed u/s.47(6) of KVAT Act, after due enquiry. The first Appellate
Authority by Annexure-B order set aside the penalty imposed holding that even if the necessary
documents were not available at the time of inspection, the documents produced at the time of enquiry have to be taken into consideration before deciding whether to impose any penalty. The first Appellate Authority also relied on the judgment of this Court in _**M.C.Dowell & Co. Ltd. v. Sales Tax**_
## **OT.Rev.No.83 OF 2015 5**
_**Officer (Enquiry), Kasaragod and others**_ reported in
_**(1993) KTR 447(Ker)**_ to reach its conclusion that no
penalty was liable to be imposed. The Tribunal reversed the said finding of the first Appellate Authority, holding as under:
_"When the vehicle was intercepted by the Intelligence Inspector, the transportation of the 8 Motor Cycles was without any of the documents prescribed under Section 46(3) of the KVAT Act. All the more the copy of the new vehicles delivery note issued by the respondent for transportation of goods was defective. The consignor's address is not entered therein, value of vehicles are not entered and the consignor's liability to pay tax is also not proved therein. At the enquiry stage, the appellant gave an explanation that the driver had not produced the bill as it has been misplaced. This argument can only be considered as a general argument and has no legal back up. Here the Intelligence Officer has_ specifically found out that the delivery chalan accompanying the
## **OT.Rev.No.83 OF 2015 6**
transport was totally defective. The Respondents version that the details in the sale bill subsequently produced and that in delivery chalan are one and the same. If so, the non entering of consignor's address, value of the vehicle in the Delivery Chalan can be considered as intentional and only of an attempt at evasion of tax. When statute cast that such and such mandates shall be complied, while transporting goods, deviation from that mandates, and subsequent production of document cannot have the support of law as the very purpose for which such a provision has been incorporated in the statute itself is defeated. The citation referred by the respondent cannot be applied to this case as in those cases, there were no definite finding of the Enquiry Officer, whether there were attempts at evasion of tax. In this case, there is clear finding by the Intelligence Officer, that there is an attempt at evasion of tax.
As noticed, the Tribunal therefore set aside
the order of the 1st Appellate Autority and
**OT.Rev.No.83 OF 2015 7**
restored the order of the Intelligence Officer. The
order of the Tribunal is now assailed before us.
3. We have heard Sri.Harisankar V Menon,
learned counsel appearing for the revision petitioner and Sri.Muhammed Rafeeque, the learned
Senior Govt. Pleader appearing for the respondent.
4. The Learned counsel for the revision petitioner would re-iterate the findings of the first Appellate Authority and would take us through the judgment in _**McDowell & Co Ltd., v. Sales Tax Officer (enquiry), Kasargod and Others (Supra)**_ and
the judgment of this Court in _**Sagar Dye-chem v.**_
_**State of Kerala**_ reported in _**(2003) 133 STC 478.**_ He
would urge that the law on the point is settled in his favour. He would argue that the provisions of the KVAT Act and Section 129 of the Kerala State GST Act, 2017 are different in terms and that while
## **OT.Rev.No.83 OF 2015 8**
the provisions of the GST Act mandate that the necessary documents must be produced at the time of detention/inspection, the provisions of the KVAT Act make it clear that the necessary documents can be produced even at the time of enquiry and this is a fact we must keep in mind while deciding the matter. The learned Senior Govt. Pleader, on the other hand, would refer to the findings in Annexure-A1 and those in Annexure-A3 order of the
Tribunal which, we have extracted above and argue that the decisions referred to by the learned counsel for the revision petitioner are quite different on facts. According to him we should not automatically apply the law laid down therein to the facts of this case. He would urge us to hold that the penalty was rightly imposed in the facts and circumstances of this case.
## **OT.Rev.No.83 OF 2015 9**
We have considered the rival submissions. The Tribunal in Annexure-C order has specifically found that there was a clear attempt on the part of the revision petitioner to evade tax. The Tribunal had perused the delivery note which had accompanied the transport and found that even the delivery note was
not acceptable since the consignee's (wrongly described as consignor) address is not shown properly, since the value of the vehicles have not been indicated and since the liability of either
party for the tax has also not been indicated. The learned Govt Pleader has also shown us copies of the delivery note (8 in number). On going through the same, we are of the opinion that the findings rendered by the Tribunal are correct and require no interference in this OT Revision. It is true that the judgments referred to by the learned counsel
## **OT.Rev.No.83 OF 2015 10**
for the revision petitioner would suggest that the authorities must accept all documents produced at the time of enquiry. However as rightly held by the Tribunal those are cases where there was no finding regarding the attempt to evade tax. The Division Bench in the decision reported in _**Sagar Dye-chem v. State of Kerala**_ ( _**2003 Volume. 133 STC 478)**_ clearly noted the finding of the enquiry officer that the transactions in that case have been accounted for and that penalty was being imposed for the technical reason that the documents required to accompany the transport were unavailable and were not in accordance with the provisions of the Act. In that case, the finding regarding proper accounting was reiterated by the first Appellate Authority and the Tribunal. It was in those circumstances that this Court found that the
## **OT.Rev.No.83 OF 2015 11**
imposition of penalty was not justified. As already noticed, in the facts of the present case, there is a clear finding regarding the attempt to evade tax and a further finding that even the Delivery Note was lacking in respect of specified particulars.
In this view of the matter, we find no reason to interfere with the order of the Tribunal. Consequently, this revision petition fails, and it is accordingly dismissed.
## **Sd/-**
## **A.M.SHAFFIQUE**
## **JUDGE**
## **Sd/-**
## **GOPINATH P.**
**JUDGE**
pm
**OT.Rev.No.83 OF 2015 12**
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE A COPY OF PENALTY ORDER PASSED BY THE INTELLIGENCE OFFICER, DEPT. OF COMMERCIAL TAXES, PALAKKAD ANNEXURE B COPY OF APPELLATE ORDER ISSUED BY THE ASST. COMMISSIONER (APPEALS), PALAKKAD ANNEXURE C COPY OF ORDER ISSUED BY THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, PALAKKAD**
**RESPONDENT'S EXHIBITS: NIL**
