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2017 DIGILAW 1383 (KER)

Bhima Jewellery & Diamonds, Adoor v. Deputy Commissioner (Intelligence), Commercial Taxes, Karamana

2017-11-07

A.K.JAYASANKARAN NAMBIAR

body2017
JUDGMENT : 1. As the issue involved in both these writ petitions are similar, they are taken up for consideration together and disposed by this common judgment. For the sake of the convenience, the reference to facts and exhibits is from W.P.(C).No.14220/2017. 2. The petitioner in the aforementioned writ petition was a partnership firm during the assessment year 2011-2012. During the said year, it conducted business as such for a brief period from 19.08.2011 to 31.03.2012. It would appear that the partnership firm was dissolved with effect from 01.04.2012, and the business was taken over by a private limited company, the petitioner in W.P.(C).No.14233/2017. Pursuant to an inspection of the premises of the private limited company on 24.08.2012, certain documents and a computer hard disk were seized from the business premises. The respondents also recovered details of certain purchases and sales effected by the partnership firm, and later the private limited company. Ext.P1 is the mahazar which evidences the search in the business premises of the company, as also the details of the documents seized from the petitioners. By Ext.P2 notice dated 20.03.2014, the petitioner was asked to show cause as to why penalty proceedings should not be initiated under Section 67 of the Kerala Value Added Tax Act (hereinafter referred as “KVAT Act”) and the penalty proposed was quantified in the notice. In the notice, the petitioner was also given an option to compound the offence, if he chose to do so in terms of Section 74 of KVAT Act. On receipt of Ext.P2 notice, the petitioner submitted Ext.P3 reply, and there upon, the respondents, by Ext.P4 revised notice dated 29.03.2014, reduced the amount proposed as penalty in Ext.P2 notice to a figure that was substantially lower. As before, the petitioner was also offered an option to compound the offence that was alleged against him in the said revised notice. Immediately on receipt of the Ext.P4 revised notice, the petitioner, under cover of Ext.P5 letter dated 30.08.2014, offered to compound the offence by paying the applicable tax amount, as determined by the Intelligence Officer, along with the compounding fee that was payable in terms of Section 74 of the KVAT Act. The offer of the petitioner was accepted by the respondents, and the petitioner was permitted to compound the offence by paying the aforesaid compounding fee and tax. The offer of the petitioner was accepted by the respondents, and the petitioner was permitted to compound the offence by paying the aforesaid compounding fee and tax. Ext.P6 is the order permitting the compounding, and collecting an amount of Rs.8,00,000/- from the petitioner towards compounding fee and an amount of Rs.1,19,23,332/- towards the tax amount payable. Thereafter, by Ext.P8 notice issued under Section 25(1) of the KVAT Act, the respondents proposed to complete the assessment proceedings for the assessment year 2011-2012 by making additions to the reported turnover. Although the petitioner preferred Ext.P9 reply to the said notice, by Ext.P10 order dated 31.12.2014, the proceedings were completed against the petitioner by effecting an addition to an extent of 50% of the suppressed turnover, to the total of the turnover declared by the petitioner and the suppressed turnover detected by the Intelligence officer. By Ext.P10 order, the liability of the petitioner towards tax and interest was determined in an amount of Rs.88,98,891/-. Aggrieved by Ext.P10 order, the petitioner preferred an appeal before the First Appellate authority, who, by Ext.P11 order dated 31.07.2015, modified the additions made by the assessing authority and limited the additions to 10% of the suppressed turnover detected. Save for this limited modification, the assessment order was otherwise upheld by the First Appellate authority. It is stated that against Ext.P11 order of the First Appellate authority, the State is in appeal before the Appellate Tribunal, and the appeal filed by the State is pending consideration before the said authority as STAT Appeal No. 185/2017. 3. While, consequent to Ext.P11 order of the First Appellate authority, the respondents proceeded to pass Ext.P12 consequential order dated 06.10.2015, demanding an amount of Rs.20,64,709/- towards the tax and interest from the petitioner, the respondents, after issuing a notice to the petitioner, proceeded to pass Ext.P15 order dated 18.03.2017, canceling Ext.P6 order, by which, the petitioner was permitted to compound the offence that was alleged against him under Section 67 (1) of the KVAT Act. In the writ petition, Ext.P15 order is impugned inter alia on the contention that, having permitted the petitioner to compound the offence, in terms of Section 74 of the KVAT Act, it was not open to the respondents to exercise the power under Section 56 of the KVAT Act to re-open proceedings that had been concluded by the compounding order. 4. 4. In W.P.(C).No.14233/2017, the factual position is almost identical and pertains to the private limited company that had taken over the business of the partnership firm which conducted the business during the immediate preceding assessment year (2011-12). The assessment year in question in this writ petition is 2012-2013. As in the case of the petitioner in W.P.(C).No.14220/2017, the petitioner herein was also permitted to compound an offence that was alleged against him under Section 67 of the KVAT Act, by Ext.P6 order. Thereafter, a notice was issued to the petitioner under Section 25(1) of the KVAT Act, proposing an assessment of escaped turnover, and the said proceedings culminated in an assessment order, wherein, an addition was made to the turnover reported by the petitioner and the suppressed turnover detected against the petitioner, to the extent of 50% of the suppressed turnover. As in W.P.(C).No.14220/2017, the petitioner herein also preferred an appeal before the First Appellate authority, but in the case of the petitioner herein, the First Appellate Authority, by Ext.P11 order, refused to interfere with the assessment order and sustained the addition of 50% of the suppressed turnover. The petitioner therefore preferred an appeal before the Appellate Authority, and the said appeal is stated to be pending consideration before the said authority as Appeal No.238/2017. In this writ petition also, the petitioner is aggrieved by Ext.P15 order dated 18.03.2017, where, as in the previous case, Ext.P6 order, that permitted the petitioner to compound the offence, is cancelled for the same reasons. 5. A counter affidavit has been filed by the respondents in both these writ petitions. The thrust of the averments in the said counter affidavits are to the effect that, the power of the Deputy Commissioner under Section 56 of the KVAT Act, to revise any order or proceedings recorded under the Act by any officer or authority subordinate to him, is one that can be exercised wherever, in the opinion of the Deputy Commissioner, the said order is prejudicial to the interests of revenue. It is the contention of the respondents that, the suo motu power of revision conferred upon the Deputy Commissioner under Section 56 is one that can be passed in respect of any order of an authority subordinate to him, and the said provision would take in even an order passed by the subordinate authority under Section 74 of the KVAT Act. The explanation to Section 56 is relied upon to contend that the order passed by the subordinate authority can be deemed to be prejudicial to the interest of the revenue, where it is found, as a matter of fact, that the tax amount assessed or demanded is lower than what is actually due, either due to escapement of turnover or for any other reason. It is further contended that, there are only certain orders against which the power of revision of the Deputy Commissioner cannot be exercised, and these orders are spelt out in the later part of Section 56 of the KVAT Act. Inasmuch as an order passed under Section 74 is not specifically referred to, in the later part of the Section 56 of the KVAT Act, the contention is that the said order is not immune from the exercise of power under Section 56 of KVAT Act. With regard to the decisions relied upon by the petitioner in the writ petition to contend that compounding proceedings under Section 74 cannot be re-opened under any circumstances, the counter affidavit of the respondents states as follows in paragraphs 43 and 44: “With regard to the averments made in paragraph 21, it is submitted that the decision relied on by the petitioner is not applicable to the facts of this case. In that case the revisional authority itself has sit in judgment on the compounding fee payable, which is excessive exercise of jurisdiction. In this case the order has been cancelled, the authorized officer can independently take decision on the tax payable and the petitioner is also free to produce all the documents to prove his case. Regarding the quantum of suppression, no decision has been taken by the revisional authority. More over in a Full Bench decision of this Hon'ble court reported in Madras Rubber Factory limited Vs. Regarding the quantum of suppression, no decision has been taken by the revisional authority. More over in a Full Bench decision of this Hon'ble court reported in Madras Rubber Factory limited Vs. State of Kerala (1979) 44 STC 208 while examining the scope of S.35 of the KGST Act, which is in pari materia with the provisions of S.56 of the KVAT Act, contention that the revisional power under Section 35 of the Act cannot be exercised for the purposes of getting at escaped income, was not accepted and the Full Bench in paragraph 3 held thus: '"In the face of these statutory provisions sketching the ambit of the respective powers and, as a matter of first impression, there appears to be no bar or inhibition against getting at escaped income in exercise of the revisional power, so long as the grounds for exercise of that power are made out, viz., that the order is vitiated by illegality, irregularity or impropriety. This is the view that has been taken in more than one decision of the Supreme Court and of this and other High Courts. We are of the opinion that the contrary view which is reflected in at least one of the Division Bench rulings of this Court and in some of the other decisions cannot be sustained" later in paragraph 17 the full bench held thus: "WE began the discussion of the question by recording our first impression on the statutory provision. The power of assessing escaped turnover and of revision are two distinct and separate powers. They have been conferred on two different authorities under Sections 19 and 35, the latter power different authorities under Sections 19 and 35, the latter power being conferred on a superior authority. An examination of the authorities has only confirmed our first impression". In the same decision at paragraph 18, while considering the question whether an assessment can be reopened under S.35 of the KGST Act when subsequent to the assessment the inspection by intelligence officer revealed non assessment of certain transactions, the Full Bench Held thus: "T.R.C. No. 75 of 1978. - In this tax revision, subsequent to the assessment order, there was a search by the Intelligence Officer, which disclosed that turnover from certain transactions had not been assessed. - In this tax revision, subsequent to the assessment order, there was a search by the Intelligence Officer, which disclosed that turnover from certain transactions had not been assessed. The Deputy Commissioner cancelled the assessment and directed the Sales Tax Officer to make a fresh assessment after taking into consideration the transactions and turnover disclosed on search by the Intelligence Officer. The power exercised by the revisional authority was strictly within the scope of Section, 35 of the Act. No question of trenching upon the assessment of escaped turnover arises in this tax revision." Similarly in a decision reported in Joy Alukkas Traders (India) Pvt. Ltd Vs. State of Kerala 2010 (1) KHC 844 a Division Bench of the Kerala High Court was pleased to hold that the power of the Deputy Commissioner u/s.35 can be exercised in respect of any order passed by the assessing officer which is prejudicial to the interest of revenue and therefore even the approval granted in Form No. 21A and the demand notice issued under form No. 22 also could be corrected by initiating proceedings under S.35 if the Deputy Commissioner is of the view that approval granted and the tax demanded are detrimental to the interest of the Revenue and that even failure or omission on the part of the Deputy Commissioner in interfering at that stage does not barred him from scrutinizing the correctness of the regular assessment completed under S.17(3). Thus, it is clearly held that the Deputy Commissioner is competent to revise an assessment prejudicial to the interest of the revenue, no matter, such assessment is completed based on an erroneous compounding order. It was also held that compounding scheme for payment of tax opted by the assessee and accepted by the assessing officer does not achieve finality, because it is subjected to the supervisory jurisdiction of the Deputy Commissioner. The powers of the Deputy Commissioner to revise orders when it is found that the same are prejudicial to the interest of the revenue has been upheld by this Hon'ble Court in St.Revn. No. 59/2012, as well as in W.P.(C) No.12429/2014 and W.P.(C) No.32866/2009.” 6. The powers of the Deputy Commissioner to revise orders when it is found that the same are prejudicial to the interest of the revenue has been upheld by this Hon'ble Court in St.Revn. No. 59/2012, as well as in W.P.(C) No.12429/2014 and W.P.(C) No.32866/2009.” 6. It is, in particular, stated that, in the instant cases, the respondents had reason to believe that a substantial part of the actual turnover of the assessees were not brought to tax on account of an error occasioned by the Intelligence Officer, and it is in order to recover the short assessed tax that it was thought fit to cancel the compounding proceedings that were completed by Ext.P6 order. 7. I have heard the learned senior counsel Sri. T.M. Sreedharan, duly assisted by Adv. Sri. Aji V. Dev appearing on behalf of the petitioners in both the writ petitions and also the learned Special Government Pleader Sri. C.E. Unnikrishnan appearing on behalf of the respondents. 8. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I find that the main issue to be considered in both these writ petitions is the legality of Ext.P15 order that cancelled Ext.P6 order, by which, the petitioners in these writ petitions were permitted to compound an offence that was alleged against them under Section 67 of the KVAT Act. The provision that enables an assessee to compound an offence that is alleged against him is Section 74 of the KVAT Act, which reads as under : “74. Composition of offences-(1) the assessing authority or other officer or authority authorized by the Government in this behalf may accept from any person who has committed or is reasonably suspected of having committed an offence against this Act, [other than those specified under clause (e) of sub-section (1) or clauses (b), (c) or (d) of sub-section (2) section 71] by way of compounding of such offence. (a) where the offence consists of the evasion of any tax payable under this Act, in addition to the tax so payable a sum of money equal to the amount of tax so payable subject to a minimum of rupees five hundred and maximum of rupees [eight lakh]; [provided that the maximum compounding fee collectable against a single offence spread over several return periods in a financial year shall be two lakh rupees] (b) in other cases, a sum of money not exceeding ten thousand rupees: Provided that the Commissioner may by order authorize any officer to compound the offence under this section on payment of a reduced amount. (2) On payment of such amount under sub-section (1), no further [penal or prosecution] proceedings shall be taken against such person, in respect of that offence.” 9. It will be seen from the perusal of the aforequoted provision that upon an option being exercised by an assessee, to compound an offence, the assessing authority or other officer authorised by the Government under the said Section, has a discretion to accept the offer of compounding from an assessee. On the offer of the assessee being accepted, a binding contract comes into existence between the assessee on the one hand and Department on the other, by which, the assessee is obliged to pay an amount by way of compounding fee over and in addition to the tax payable under the Act. Once the said amounts are paid, no further penal or prosecution proceedings can be taken against the assessee in respect of the offence. The tenor of the aforesaid provision, therefore, is that once an offer is made by an assessee for compounding an offence, and the assessee satisfies the pre-requisites for compounding the offence by paying the tax amount determined as payable together with the applicable compounding fee, the acceptance of the offer of the assessee, by the Department, brings into existence a binding contract, closing the penalty proceedings by accepting the amounts due from the assessee, and from the said binding contract, neither party is permitted to resile. This position in law has been recognised by a number of decisions of this Court, and in particular, the decision in State of Kerala v. Molly Babu [ (2010) 29 VST 75 (KER)] and S.Viswanathan v. State of Kerala [ 1999 (113) STC 182 (KER)]. This position in law has been recognised by a number of decisions of this Court, and in particular, the decision in State of Kerala v. Molly Babu [ (2010) 29 VST 75 (KER)] and S.Viswanathan v. State of Kerala [ 1999 (113) STC 182 (KER)]. The question then arises as to whether, in exercise of the power under Section 56 of the KVAT Act, the Deputy Commissioner can suo motu revise an order that is passed under Section 74 of the KVAT Act. On a perusal of Section 56 of the KVAT Act, it is clear that the exercise of suo motu power of revision by the Deputy Commissioner, is expressly made subject to the provisions of the Act. This would mean that the Deputy Commissioner, in the exercise of his power under Section 56 of the KVAT Act, would necessarily be bound by the statutory scheme of finality envisaged in respect of orders passed under Section 74 of the KVAT Act. I cannot, therefore, accept the contention of the learned Government Pleader that, the power of suo motu revision can be exercised by the Deputy Commissioner even against an order under Section 74 of KVAT Act, since the order under Section 74 is not expressly excluded from the ambit of Section 56 of the KVAT Act. In my view, the express provisions of Section 56, which make the exercise of power by the Deputy Commissioner subject to the other provisions of the Act, would necessarily imply that the Deputy Commissioner cannot exercise the suo motu power of revision over an order that has attained finality on account of the express provisions of the same Statute. The Deputy Commissioner, being a creature of the Statute, cannot exercise a power, contrary to the scheme of the Statute. 10. There is yet an another view of the matter. In these cases, I note that the grievance of the respondents is essentially with regard to the prejudice that is caused to the revenue on account of an erroneous order passed by the Intelligence Officer, limiting the tax liability of the petitioner to an amount stated to be substantially lower than what ought to have been assessed, if the turnover had been correctly determined. It is necessary to note in this connection, that the tax liability of an assessee, under the KVAT Act, is to be determined not by the Intelligence Officer but by the Assessing officer in assessment proceedings under the Act. In the instant cases, although in the penalty proceedings which were initiated against the assessee, and which were subsequently compounded by the assessee, there was a determination of the tax liability of the assessee for the purposes of completing the compounding proceedings, the said determination of tax liability cannot, by any stretch of imagination, be said to be final and binding on the Department for the purposes of assessment. This legal position has also been settled through a line of decisions of this Court including the decision of a Division Bench in State of Kerala v. Molly Babu [ (2010) 29 VST 75 KER]. In other words, despite the determination of tax liability by an Intelligence Officer in penalty proceedings, the assessing authorities under the Act can independently proceed to determine the actual amounts that are due to the revenue by way of tax in the assessment proceedings. Viewed in that sense, there was no prejudice caused to the revenue simply on account of the Intelligence Officer having determined the tax liability of the petitioner assessee in a lower amount than what was actually due. The assessing authorities could have independently, in the assessment proceedings, determined the actual liability of the petitioners assessees under the KVAT Act. I note from the facts in the writ petitions that the assessment proceedings were also completed against the assessees, where, once again, the authorities did not take note of the mistake occasioned by the Intelligence Officer and adopted a lower turnover for the purposes of the assessment. No doubt, there were additions made to the turnover reported, towards suppressed turnover and a further addition of 50% of the suppressed turnover. The said addition of 50% of the suppressed turnover was however reduced by the First Appellate authority to 10% in the case of the petitioner in W.P. (C).No.14220/2017, and maintained by the First Appellate authority in the case of the petitioner in W.P.(C). No. 14233/2017. The said addition of 50% of the suppressed turnover was however reduced by the First Appellate authority to 10% in the case of the petitioner in W.P. (C).No.14220/2017, and maintained by the First Appellate authority in the case of the petitioner in W.P.(C). No. 14233/2017. In both these cases, although appeals have been filed before the Appellate Tribunal, I find that it may still be open to the Department to initiate proceedings for bringing to tax the escaped turnover, in terms of Section 25 (1) of the KVAT Act. This, however, is something that the department would have to explore, and I make it clear that nothing in this judgment shall stand in the way of the department pursuing such a course of action, in accordance with law. In the result, I find that the writ petitions, in their challenge against Ext.P15 order, must necessarily succeed. I therefore allow these writ petitions, by quashing Ext.P15 order in both the writ petitions, with consequential reliefs to the petitioners.