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Kerala High Court
P.M. Mohammed Rafeek vs State Of Kerala on 23 March, 2011




OT.Rev.No. 29 of 2011()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.PMM.NAJEEB KHAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :23/03/2011

 O R D E R
                     O.T.Rev. Nos.29 & 30 of 2011
              Dated this the 23rd day of March, 2011.

                                J U D G M E N T

Ramachandran Nair, J.

The question raised in both the connected revision cases is whether the Tribunal was justified in sustaining penalty at equal amount of tax for dishonour of cheques given towards payment of tax and consequent delay in payment of tax.

2. At admission stage of the Revision cases, learned Government Pleader took notice and offered to argue the matter on merits. Accordingly we heard both sides and proceed to dispose of the Revisions by this common judgment.

3. The petitioner is a dealer in Coffee and Pepper filing monthly returns and remitting tax thereon under the Kerala Value Added Tax Act (hereinafter referred to as the Act for short). While the tax payable for February, 2009, was Rs.99,648/-, the tax payable for March, 2009, was Rs.1,14,241/-. The cheques given along with monthly returns towards payment of tax were O.T.Rev.Nos.29 & 30 of 2011 2 dishonoured. However, strangely the Assessing Officer took nearly 7 to 8 months to notice the dishonour of cheques and consequent non recovery of tax. The same is revealed from the fact that notice was issued to the petitioner only on 26/10/2009. As and when notice was received, the petitioner remitted the tax due for February and March, 2009, on 22/02/2010 with interest @ 12% per annum. The Assessing Officer however levied penalty under Section 67 of the Act, which is for non payment of tax along with monthly returns. All the appellate authorities including the Tribunal concurred with the exigibility to penalty, but the two appellate authorities modified the penalty orders, and under the Tribunal's orders penalty levied is equal to the amount of tax. It is against these orders of the Tribunal, the petitioner has filed these Revision cases.

4. Learned counsel for the petitioner contended that the petitioner was suffering from heart disease and the same led to his failure to arrange funds to honour the cheques presented towards payment of tax. Learned Government Pleader, on the other hand, contended that there is no bonafides in the petitioner's contention and the same is clear from the fact that the petitioner did not even O.T.Rev.Nos.29 & 30 of 2011 3 apply for time for payment of tax even after dishonour of cheques which would have been intimated by the Bank to the petitioner at least, though the Department did not admittedly inform him in time. We do not think there is any need to go into the question whether the petitioner had an ailment leading to his inability to arrange funds in the Bank to honour the cheques given because a dealer collecting tax has to pay the collected tax to the Government and he has no authority to divert collected tax for any other purpose. However, if for any unforeseen reason the cheques got dishonoured, it was the duty of the petitioner to have intimated the Officer and arrange funds at the earliest to honour the cheques. What we notice is that the fault or lethargy is more on the part of the Departmental Officer than on the part of the Assessee. This is because the Assessing Officer before whom cheques are presented for payment does not bother to take any action for at least 6 months after the dishonour of cheques. In our view, the lapses on the part of the Officer is not to be taken lightly. So far as a dealer is concerned, what we find is the low rate of interest for default or delay in payment of tax provided under Section 31(5) @ 12% per annum, O.T.Rev.Nos.29 & 30 of 2011 4 which is @ 1% per month, is sufficient incentive for the traders to delay payment of tax or even divert collected tax for other purposes.

5. Learned Government Pleader rightly pointed out that interest reduction is done to make the rate of interest at par with several tax legislations of the Central Government and other States. However, he rightly pointed out that in all cases of default in payment of tax, penalty should be considered depending upon the nature and period of default in terms of Section 68 of the Act. In this case, it is seen that penalty is levied by the Officer under Section 67 of the Act, which is for general violation and not for default in payment of tax, which is the case here. What we notice is that even though the Officer has levied penalty under Section 67 of the Act at double the amount of tax, the Tribunal in fact did not accept the principle that maximum penalty under Section 67 of the Act could be levied because by reducing the penalty to equal amount of tax, the Tribunal has made the penalty orders compliant with Section 68 of the Act.

We have, in O.T.Rev.No.27/2011, held that the scope of O.T.Rev.Nos.29 & 30 of 2011 5 Section 67 of the Act is such that it covers all cases of violation of the Act and the Rules. However, wherever there is special provision in the act providing for penalty for specific violation, penalty should be considered under the special provision and not under Section 67 which provides for penalty for all violations not separately provided for. A case of non-payment of tax or default in payment of tax whether it be admitted tax or demanded tax is squarely covered by Section 68 of the Act and the relevant provision under which penalty has to be considered is Section 68 of the Act, no matter dishonour of cheque submitted along with monthly return amounts to filing of return without payment of tax and so much is a default which falls under Section 67 of the Act as well. Though the Assessing Officer is given the discretion to fix the penalty depending upon the period of default and the nature of default under Section 68 of the Act, we feel instead of remanding the matter we should exercise our discretion and decide the matter finally. Considering the fact that taxes were paid along with interest on issuing notice by the Assessing Officer, and the Assessing Officer himself delayed issue of notice by six months and in view of the financial difficulty O.T.Rev.Nos.29 & 30 of 2011 6 expressed by the petitioner consequent upon his heart ailment, we refix the penalty at Rs.25,000/- per month i.e. Rs.50,000/- as total penalty for delay in payment of tax for the months of February and March, 2009.

These O.T.Revision Cases are allowed in part as above.