Judgment: 1. When Section 17(5A) of the KGST Act specifically provides for penalty on failure to return the correct figures in a case covered by Section 17(4) of the Act, whether levy of penalty again under ‘Section 45A’ of the Act would amount to ‘double jeopardy’ and hence unconstitutional, is the moot point. 2. The petitioner is a dealer in furniture and is an assessee on the rolls of the second respondent. The petitioner filed returns in respect of the assessment year 1998-99, 1999-2000 and 2000-01 opting for simplified procedure of assessment under Section 17 (4) of the Act and the assessment was completed accordingly. But subsequently, investigation conducted by the third respondent brought to light certain transactions involving the sale of goods by the petitioner to SIDCO in respect of the above three assessment years, which however did not find a place in the returns filed and the books of accounts. After confronting with the incriminating circumstances, the petitioner was mulcted with penalty under Section 45A of the KGST Act to the tune of Rs.1,25,452/-, Rs.56,532/- and Rs.11,140/- for the above three assessment years, as borne by Exts.P1 to P3 orders respectively. Though the petitioner filed statutory revision petitions before the concerned authority, interference was declined and the revision petitions were dismissed as per Ext.P7 common order; aggrieved of which, a second revision petition was filed. Because of the coercive proceedings pursued in the meanwhile, the petitioner was constrained to approach this Court by filing W.P.(C) No.25144 of 2003, which was disposed of as per Ext.P10 judgment, directing to pass final orders in the revision petition preferred before the first respondent, who in turn was directed also to consider whether imposition of punishment under Section 45A would be justified, the petitioner having already been mulcted with the penalty of ‘thrice the tax amount’ sought to be evaded under Section 17(5A) of the KGST Act. 3. In the meanwhile, pursuant to Exts.P1 to P3 orders passed by the third respondent, the second respondent reopened the assessment for the years 1998-99, 1999-2000 under Section 19(1) of the Act, fixing the tax liability accordingly. 3. In the meanwhile, pursuant to Exts.P1 to P3 orders passed by the third respondent, the second respondent reopened the assessment for the years 1998-99, 1999-2000 under Section 19(1) of the Act, fixing the tax liability accordingly. After approaching the first appellate authority, the petitioner approached the Tribunal as well, by way of second appeal, which led to Ext.P8 order dated 18.09.2003, whereby the Tribunal modified the assessment and the assessing authority was directed to re-fix the liability in terms of the said order, also directing to verify whether the assessee had taxable minimum for the year 2000-01. 4. Based on the re-assessment proceedings originally pursued by the assessing authority pursuant to Exts.P1 to P3 order, the second respondent had found that the assessee was actually liable to pay an amount of Rs.1,34,676/- in respect of the year 1998-99, Rs.65,238/- in respect of the year 1999-2000 and Rs.26,027/- towards the year 2000-01 as per the orders passed under Section 19. Based on the said figures, ‘penalty’ was also simultaneously imposed under Section 17(5A), making the assessee to satisfy ‘thrice’ the amount of tax sought to be evaded, as mandatorily fixed under the Statute, thus fixing the liability as Rs.4,04,028/- for the year 1998-99, Rs.19,05,714/- for the year 1999-2000 and Rs.78,081/- for the year 2000-01, vide Ext.P4 to P6 orders passed on 16.04.2003. 5. Being aggrieved of Ext.P4 to P6 orders the petitioner approached the first Revisional authority, when the quantum of penalty was reduced in respect of the years 1998-99 and 1999-2000, making the same ‘equal to tax effect’. While in respect of the year 2000-01, it was observed that the total turnover, even after making the addition of ‘one time’ to the turn over conceded, was below the assessable minimum of Rs. ‘Two lakhs’ and as a result, the penalty imposed under Section 17(5A) for the year 2000-01 was found as incorrect and was cancelled vide Ext.P9. 6. On coming across Ext.P9 order passed by the first revisional authority and on finding ‘loss of revenue’ has been wrongly resulted, the first respondent invoked the power of ‘suo motu revision’ under Section 37 of the KGST Act and after completing the proceedings passed Ext.P11 order. 6. On coming across Ext.P9 order passed by the first revisional authority and on finding ‘loss of revenue’ has been wrongly resulted, the first respondent invoked the power of ‘suo motu revision’ under Section 37 of the KGST Act and after completing the proceedings passed Ext.P11 order. It was held as per Ext.P11 that the penalty imposed under Section 17(5A) was pursuant to ‘re-opening of the assessment’ completed under Section 17(4), in view of suppression detected later; as a result of which, the penalty prescribed as ‘three time’ the tax difference, was mandatory. Accordingly, Ext.P9 order was set aside and the penalty ordered as per Exts.P4 and P5 in respect of the years 1998-99 and 1999-2000, fixing the same as ‘three times’ the tax effect was restored. However, in respect of the year 2000-01, since the turnover was below the taxable limit, suo motu proposal for the said year was dropped and the assessing authority was directed to re-compute the penalty under Section 17(5A) for the years 1998-99 and 1999-2000 at ‘thrice the tax difference’ in accordance with law, in tune with the revised assessment based on the appellate orders. 7. The case of the petitioner is that, the petitioner has accepted Ext.P11 verdict and is having absolutely no dispute as to the liability to pay the penalty at three times, as prescribed under the Statute and in fact has cleared the said amount as well; while the challenge is only with regard to Exts.P1 to P3 orders passed by the third respondent, which stand finalised as per Ext.P12 order passed by the first respondent, making the petitioner to satisfy the penalty under ‘Section 45A’ as well. The specific contention of the petitioner is that, inspite of the direction given by this court as per Ext.P10 judgment to consider the sustainability of imposition of punishment under Section 45A after sustaining the punishment under Section 17(5A), the case projected by the petitioner has not been properly appreciated by the first respondent while passing Ext.P12 and hence is under challenge. 8. The respondents have filed a counter affidavit pointing out that the idea and understanding of the petitioner that once the punishment is imposed under Section 17 (5A), no further punishment under Section 45A can be imposed, is quite wrong and misconceived. 8. The respondents have filed a counter affidavit pointing out that the idea and understanding of the petitioner that once the punishment is imposed under Section 17 (5A), no further punishment under Section 45A can be imposed, is quite wrong and misconceived. It is stated that the two different provisions are not overlapping each other and are independent of each other to govern two different situations separately dealt with under the statute. Referring to the materials on record, it is stated that the petitioner, at the time of filing the return and opting to have the simplified assessments under Section 17(4), has consciously not included the turn over in respect of the sales of goods to SIDCO in all the three different assessment years and it was only pursuant to the investigation made by the third respondent, that the actual facts and figures were brought to light, which necessitated re-opening of the assessment under Section 19. As a natural consequence, the petitioner is stated as liable to be imposed with penalty under Section 17(5A), where no question of any ‘discretion’ or application of ‘Mens rea’ is involved, as the situation is taken care of by the statute itself, is the crux of the contention. 9. The learned Counsel for the petitioner submits that the scheme of the statute has to be read and understood as a whole. The punishment contemplated under Section 45A is not mandatory or automatic in all the cases and existence of ‘Mens rea’ is very much essential, as made clear by the Apex Court and also by this Court on several occasions. It is in respect of the very same offence as to the incorrect returns filed by the petitioner, that the assessment completed under Section 17(4) was caused to be re-assessed under Section 19(1) and the petitioner has been mulcted with the maximum penalty of ‘three times’ as provided under Section 17(5A), vide Ext.P4 to P6 orders. It is in respect of the very same offence as to the incorrect returns filed by the petitioner, that the assessment completed under Section 17(4) was caused to be re-assessed under Section 19(1) and the petitioner has been mulcted with the maximum penalty of ‘three times’ as provided under Section 17(5A), vide Ext.P4 to P6 orders. Though the first revisional authority reduced the liability to an amount equal to the tax in respect of the years 1998-99 and 1999-2000, cancelling the penalty in respect of 2000-01 for not having even the minimum turn over to suffer tax liability, the same was ‘suo motu’ varied by the first respondent by passing Ext.P11, invoking the power under Section 37, restoring the penalty to ‘three times’ under Section 17(5A) in respect of 1998-99 and 1999-2000, while dropping the suo motu proposal in respect of the year 2000-01, since even the added/enhanced turnover did not result in any taxable event. After having imposed such maximum punishment, the self same offence is not liable to be reckoned again for imposing the penalty under Section 45A, which amounts to ‘double jeopardy’ and hence is sought to be intercepted. Reliance is sought to be placed on the decision rendered by this Court in M.K. Pushparanjini, Chikkus Wood Crafts vs. The Sales Tax Officer and others [(2003) 11 KTR 527 (Ker.)] and in Surajmal Parsuram Todi vs. Commissioner of Income Tax[(1996) 222 ITR 691] (Gauhati Bench). It is also contended that the ‘general provision’ (Section 45A) has to yield to the ‘special provision’ [S.17(5A)], in view of the dictum laid down by the Apex Court in (1984) 4 SCC 27 (Maharashtra State Board of Secondary and Higher Secondary Education vs. Parithosh Bhupesh Kumar Sheth). It is further stated that in fiscal statutes, while interpreting the relevant provisions, choice of construction shall be taken which is favourable to the assessee, as held in [(1973) 1 SCC 442 (The Commissioner of Income Tax, West Bengal vs. M/s. Vegetables Products Ltd.). 10. From the discussions made above, it is to be noted that, the factum of opting for simplified assessment under Section 17(4), the incriminating circumstances brought to light in the course of further investigation necessitating re-assessment under Section 19 and imposition of punishment under the special provision of Section 17(5A) finalised as per Ext.P11 are not under dispute. 10. From the discussions made above, it is to be noted that, the factum of opting for simplified assessment under Section 17(4), the incriminating circumstances brought to light in the course of further investigation necessitating re-assessment under Section 19 and imposition of punishment under the special provision of Section 17(5A) finalised as per Ext.P11 are not under dispute. The dispute is only with regard to the imposition of further punishment under the ‘General provision’ of Section 45A. 11. To understand the scope of Section 45A and the circumstance that differentiates the said provision from Section 17(5A), it is necessary to have a look into both these provisions which are extracted below: Section 17(5A): “(5A) Where on reopening of an assessment completed under sub-section (4) in respect of any dealer, it is found that the amount of tax, if any, paid by such dealer is less than the amount of tax which he is liable to pay on such fresh assessment, the assessing authority shall direct such dealer to pay the difference between the amount of tax already paid by him and that arrived at on such fresh assessment, together with thrice the amount of such difference as penalty.” Section 45A: “45A. Imposition of penalty by officers and authorities: (1) Notwithstanding anything contained in section 46 if the assessing authority is satisfied that any persons (a) being a person required to register himself as dealer under this Act, did not get himself registered; or (b) has failed to keep true and complete accounts; or (c) has failed to submit any return as required by the provisions of this Act or the rules made thereunder; or (d) has submitted an untrue or incorrect return; or (e) has failed to comply with all or any of the terms of any notice or summons issued to him by or under the provisions of this Act or the rules made thereunder; or (f) after purchasing any goods in respect of which he has made a declaration under proviso to sub-section (3) of Section 5, has failed to make use of the goods for the declared purpose; or (g) has acted in contravention of any of the provisions of this Act or any rule made thereunder, for the contravention of which no express provision for payment of penalty or for punishment is made by this Act. (h) or has abetted the commission of any of the above offences. Such authority or officer may direct that such person shall pay, by way of penalty an amount not exceeding twice the amount of Sales Tax or other amount evaded or sought to be evaded, where it is practicable to quantify the evasion or an amount not exceeding ten thousand rupees in any other case. Explanation 1: The burden of proving that any person is not liable to the penalty under this Section shall be on such person. Explanation II: For the purposes of this sub-section the expression ‘assessing authority’ includes any officer not below the rank of a Sales Tax Officer specified by the Government in this behalf by notification in the Gazette. (2) No order under sub-section (1) shall be passed unless the person on whom the penalty is proposed to be imposed is given an opportunity of being heard in the matter. (3) The Deputy Commissioner may, on application by any person on whom the penalty is imposed under sub-section (1) within thirty days from the date of receipt by him of the order imposing such penalty, for reasons to be recorded in writing confirm, reduce or waive such penalty or remand the case to the assessing authority, for reconsideration. Provided that the Deputy Commissioner may admit an application made after the expiry of the said period of thirty days if he is satisfied that the applicant had sufficient cause for not making the application within the said period. (4) An order of the Deputy Commissioner under sub-section (3) shall, subject to the provisions of sub-section (5), be final. (5) The Board of Revenue may, either suo-motu or on an application, call for and examine the record or any order passed under sub-section (1) or sub-section (3) and make such order as it thinks fit. Provided that the Board of Revenue shall not admit an application made after the expiry of thirty days from the date of receipt by the applicant of the order under sub-section (1) or sub-section (3), as the case may be, unless it is satisfied that the applicant had sufficient cause for not making the application within the said period. Provided that the Board of Revenue shall not admit an application made after the expiry of thirty days from the date of receipt by the applicant of the order under sub-section (1) or sub-section (3), as the case may be, unless it is satisfied that the applicant had sufficient cause for not making the application within the said period. Provided further that no order enhancing a penalty or cancelling the waiver of a penalty shall be passed unless that person affected thereby is given an opportunity of being heard in the matter. (5A) An application under sub-section (3) shall be accompanied by a fee of rupees two hundred and that under sub-section (5) by a fee of rupees five hundred. (6) An order of the Board of Revenue under sub-section (5) shall be final.” While Section 45A was brought into the statute book by virtue of Act 12/1976 w.e.f. 27.10.1976, Sub Section (5A) to Section 17 was brought into force, as per the Act 14/1998 w.e.f. 01.04.1998. With regard to invocation of power to impose penalty under Section 17(5A), the provision is categoric, that on re-opening of an assessment completed under Section 17(4), finding that the amount payable by the dealer was less than the amount of tax, dealer is liable to pay on such fresh assessment, the penalty to be thrust upon such dealer as ‘thrice the amount of such difference’. In other words, it has been stated in explicit terms, giving no room for ambiguity, that no other course is available for the assessing authority, but to follow the specific mandate as given in the Statute. This is for the obvious reason that a dealer, opting for assessment under Section 17(4), constitutes a separate class on whom the assessing authority reposes some confidence and completes the assessment by accepting the returns and statements filed in support thereof. This category of assessee cannot be equated to other assessees, whose assessments are to be completed on the basis of long drawn process of assessments, after detailed scrutiny of returns and accounts, casting a more heavy burden of work and duty upon the assessing authority. Later, if the confidence reposed in the former class of assessees is proved to be incorrect, because of subsequent turn of events, which is solely attributable to the assessees’ conduct, such assessees have necessarily to pay for it and suffer the consequence. Later, if the confidence reposed in the former class of assessees is proved to be incorrect, because of subsequent turn of events, which is solely attributable to the assessees’ conduct, such assessees have necessarily to pay for it and suffer the consequence. This is with a view to see that such assessees do not make any bogus claim by filling untrue returns, availing the benefit of simplified assessments under Section 17 (4) and it is with this view, that a deterrent punishment stipulating for a higher penalty of thrice and tax effect is sought to be cast upon such assessees, without even giving any power of discretion to the assessing authority with regard to imposition of such penalty under section 17 (5A). 12. Quite contrary to this, when it comes to the punishment to be imposed under Section 45A, it is a ‘general provision’, so as to take care of various situations, as contemplated therein, such as non-filing of incorrect returns, non-keeping of the proper books of accounts, non-responding to summons and notices issued to the authorities etc. The net effect of which is the undue benefit of tax evasion, at the cost of the Revenue. But here, the gravity of the offence committed by the assessee varies from case to case and the consequence resulted, is not equally grave as the situation covered under Section 17(5A). That apart, all such instances contemplated under Section 45A need not be due to any conscious act on the part of the assessee, so as to make it punishable. In other words, ‘Mens rea’ is relevant in such cases and there is an element of discretion vested with the authority. 13. The necessity to have ‘Mens rea” to sustain punishment under Section 45A had come up for consideration before the Apex Court in the decision reported in AIR 1961 SC 552 (Kunnathat Thathunni Moopil Nair v. State of Kerala) and it was held that in the absence of Mens rea, the penalty imposed under Section 45A was not liable to be justified. The same view was followed by the Apex Court in Kantilal Babulal and Bros. vs. H.C. Patel [21 STC 174] as well. Unlike this, there may be circumstances, where the statute itself may provide for penalty, on satisfying the requirements/ingredients, which does not depend upon any ‘Mens rea’. 14. The same view was followed by the Apex Court in Kantilal Babulal and Bros. vs. H.C. Patel [21 STC 174] as well. Unlike this, there may be circumstances, where the statute itself may provide for penalty, on satisfying the requirements/ingredients, which does not depend upon any ‘Mens rea’. 14. Generally speaking, ‘Mens rea’ is not relevant even in criminal cases and it can only be a supporting link if the same is established. Coming to the fiscal statutes, in view of the specific nature of the liability cast upon, particularly, the source of power to tax the instance with reference to Article 265 and the various entries in the different lists under the 7th Schedule to the Constitution of India, all instances of variation of liability on different heads need not involve offence to be punished; more so when such a proceeding is ‘quasi criminal’ in nature. Whether the assessee was conscious enough of the act that was being pursued, gathers significance in the said circumstance, which in turn is being analysed and assessed to sustain the punishment to be imposed. It is with this intent, that some flexibility is loaded in the provision itself, giving some ‘discretion’ to the authorities concerned, as to see whether the punishment has to be imposed as contained under Section 45A of the KGST Act (or Section 67 of the KVAT Act), where the specific stipulation is that the authority ’may’ and not ‘shall’. It is by virtue of the said ‘discretion’ conferred under the provision itself, that the authority has to analyse the actual facts and figures before imposing such penalty under Section 45A of the KGST Act, to see whether the assessee has to be mulcted with punishment and if so, to what extent, which may go up to ‘twice’ the tax effect. Unlike this, in the case of former category of assessees, who opt for simplified assessment under Section 17(4) and then lose the game, pursuant to the detection of incriminating circumstances, they have to be dealt with a firm hand, providing deterrent punishment without any element of discretion or Mens rea, which in turn find a place as given under Section 17(5A). This being the position, the circumstances contemplated under Section 17(5A) and Section 45A of the KGST Act stand on different footing and to meet the different situations. This being the position, the circumstances contemplated under Section 17(5A) and Section 45A of the KGST Act stand on different footing and to meet the different situations. This Court finds support in this regard from the decision already rendered in M.K. Pushparanjini, Chikku’s Wood Crafts vs. The Sales Tax Officer & Others [(2003) 11 KTR 527 (Ker.)], while upholding the constitutional validity of Section 17(5A) of the KGST Act. 15. Now the question is whether the punishment imposed upon the petitioner under Section 45A of the KGST Act vide Ext.P12 is in respect of the same offence as covered by Ext.P11 order imposing penalty at a higher rate under Section 17(5A) and whether the same is sustainable. 16. Admittedly, the orders imposing the penalty under Section 45A are in respect of the circumstances contemplated under sub-clauses (b) and (e) of Section 45A, which speak about the failure of the assessee to keep true and complete accounts or as to the failure to comply with all or any of the terms of any notice or summons issued to him by or under the provisions of this Act or the rules made thereunder. The materials on record reveal that the accounts maintained by the petitioner was not true and complete; which led to rejection of the returns causing re-opening of the assessment, leading to a higher tax effect and the mandatory satisfaction of the higher penalty (three times) under Section 17(5A). It is also true that as per the observations in the impugned proceedings, the assessee had not turned up with the documents in response to the notice/summons issued in the course of the proceedings, which led to adverse orders, finally leading to Exts.P11 and P12. The course and conduct pursued by the assessee in not maintaining the true and correct accounts and in not responding to the notice/summons involving the circumstances under Section 45A(b) and (e) was however to be dealt with, while considering the question of imposing the penalty with reference to the ‘Mens rea’ and such other circumstances, also giving an element of ‘discretion’ to the authorities while fixing the quantum, where the maximum penalty of ‘two times’ of tax effect alone could be imposed. But since the assessee chose to jump into other wagon/class, seeking to have a simplified assessment under Section 17(4) and later proved to be not worthy of its conduct, has lost the element of mercy, compassion or discretion as to the instance of imposing penalty or as to its quantum, but came to be automatically liable to be covered under Section 17(5A), where there is no ‘Mens rea’, there is no ‘discretion’ and the penalty is in-built/automatic, to a higher extent of ‘three times’ to the tax effect. 17. Admittedly, the liability under Section 17(5A) has become final as per Ext.P11 order and it has been satisfied by the petitioner as well. This being the position, the said assessee is not liable to be punished for the same offence by referring to the General provision of Section 45A, as to the failure to maintain proper accounts and non-response to the summons/notice, which stands on a much lower pedestal. Even though Sections 17(5A) and 45A are distinct and different, governing separate situations, the offence involved is measured in greater scales, imposing punishment in a mandatory manner, that too by ‘three times’ of the tax effect in respect of the years 1998-99 and 1999-2000, while leaving the rest in respect of 2000-2001 as the Turn Over did not touch the limit. If the turn over does not touch the limit to suffer any tax liability in respect of 2000-01 for imposing the ‘mandatory penalty’ under Section 17(5A), there is no question of considering the same for imposing the ‘discretionary penalty’ under Section 45A as well. The observations made by the statutory authority, to the contrary, are not correct or sustainable and are liable to the interfered with. 18. Reference to a decision rendered by the Gauhati Bench of the High Court of Assam, reported in [1996 222 ITR 691] (cited supra) is useful, though the same pertains to the provisions under the Income Tax Act. True, it was a case where the penalty proceedings were finalised imposing the penalty under Section 271A for not maintaining the Books of Accounts and also mulcting with further penalty under Section 271B for not getting the Boos of Accounts audited. In the said case, the Court observed that, the assessee admittedly had not maintained any books of accounts. True, it was a case where the penalty proceedings were finalised imposing the penalty under Section 271A for not maintaining the Books of Accounts and also mulcting with further penalty under Section 271B for not getting the Boos of Accounts audited. In the said case, the Court observed that, the assessee admittedly had not maintained any books of accounts. By virtue of the provisions under the statute, it was not enough for the assessee to have maintained the books of accounts, but had also to see that they were duly audited, so as to satisfy the mandate. Since the assessee had not even maintained the books of accounts, the question of getting the same audited did not arise and hence, the punishment was confined to Section 271A alone. Even though the said decision is not squarely applicable to the case in hand, this Court finds that some reliance can be placed on the said observations therein as well. The case involved herein is situated on a much higher pedestal, in view of the higher extent of liability prescribed under Section 17(5A) of the KGST Act, to an extent of thrice the amount of tax payable and leaving no discretion whatsoever on the authorities concerned, without the usage of the expression ‘may’ as it appears under Section 45A. 19. It is relevant to note that, as observed by the Supreme Court in(1984) 4 SCC 27 (cited supra), when a ‘special provision’ is there, the ‘general provision’ has to be excluded, so as to give way to the former. In the instant case, Sec.17(5A) is the special provision and Section 45A is the general provision, which in turn has to yield to the former. Above all, in fiscal statutes, interpretation has to be given, taking the choice of construction which is favourable to the assessee, as held by the Apex Court in (1973) 1 SCC 442 (The Commissioner of Income Tax, West Bengal vs. M/s. Vegetables Products Ltd.). 20. In the above circumstance, this Court finds that the petitioner is entitled to succeed. It is declared that, when punishment under Section 17(5A) is imposed, further punishment under Section 45A in respect of the same offence/ingredients is not correct or proper. 20. In the above circumstance, this Court finds that the petitioner is entitled to succeed. It is declared that, when punishment under Section 17(5A) is imposed, further punishment under Section 45A in respect of the same offence/ingredients is not correct or proper. Exts.P1 to P3 orders passed by the 3rd respondent under Section 45A of the KGST Act and Ext.P12 order passed by the first respondent are set aside, to the extent they are challenged. The writ petition is allowed. No cost.