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2013 (5) TMI 316 - KERALA HIGH COURTPenalty under Section 17(5A) - re-opening of the assessment - assessee contested against the penalty levy on the ground as it cannot be levied for any year prior to 1998-99 as it was introduced with effect from 1.4.1998 - Held that:- Penalty as provided in the Section is attracted, when assessments completed under Section 17(4) are re-opened and on such re-opening it is found that the amount of tax already paid by the dealer is less than the amount of tax, which he is liable to pay on the fresh assessment. Therefore, as on 1.4.1998, when the Section was introduced by the Legislature, it talks about re-opening of the assessments already completed and Section is attracted in a situation when tax already paid is found to be inadequate. Such a situation can be attracted in respect of the assessment years prior to 1.4.1998 also and therefore the contention that the assessment year being 1996-1997, Section 17 (5)(A) introduced with effect from 1.4.1998 is not attracted is untenable. As the final assessment under Section 17(4) was completed on 12.1.2001 and the reopened assessment was completed still later. No material is available regarding the date on which the petitioner had opted for the assessment under Section 17(4) to hold that the option was not after 1.4.1998. In such circumstances, there is nothing illegal in the levy of penalty under Section 17(5) (A), as per Ext.P1 order, which has been confirmed by the Revisional Authorities concurrently - against assessee.
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