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2023 (5) TMI 375 - HC - VAT and Sales TaxJurisdiction of Intelligence Officer to levy penalty - penalty proceedings initiated under Section 67 of the KVAT, 2003 - Intelligence Officer in penalty proceedings initiated under Section 67 of the KVAT, 2003 can assume the role of Assessing Officer in imposing penalty on estimation or on the basis of correct figures or not - HELD THAT:- On verification of available books, it was convincingly found that BPCL did not effect any payment other than that of Fixed Monthly Charge towards the works executed by the petitioner for setting up production plant exclusively for BPCL and beyond doubt that BOO Operator had not received any consideration for setting up the new plant and machinery exclusively for BPCL until the supply of industrial gases started. BOO operator began to issue two type invoices one for FMC for BPCL on account of Hydrogen and Nitrogen without affecting any such supply, but, for actual supply effected invoice for VC by reading the metering equipment - No doubt, the Division Bench of this Court had culled out a ratio decidendi by holding that Intelligence Officer is not empowered while initiating the proceedings under Section 61 of KVAT Act and 45A of KGST Act 1963 on the basis of guess work and estimation. It is not the case where the petitioner failed to supply the documents in response to the notices reflecting the imposition of the penalty impelling the Intelligence Officer to arrive at a proceedings on estimation. The dictum laid down in M.K.Markar and others' case [2018 (12) TMI 481 - KERALA HIGH COURT] would definitely come into play, wherein it has been held that the role of Intelligence Officer is only to impose penalty prescribed in the Act and the matter was referred to the Assessing Officer, who would not be precluded from proceeding to arrive at best judgment on the basis of factors relevant to the activity of the dealer. On the basis of the extracted findings of the Intelligence officer it can irresistibly be concluded, it was not a case of estimation, but based on an actual calculation by reading the contents of the agreement and the invoices. That could not be a case falling in the ratio culled out in Markar's Case where Intelligence Officer was required to refer the matter to the Assessing Officer, nor would be any force in the argument that unless and until the Assessing officer embarks upon proceedings under Section 25 b penalty proceedings cannot be initiated. There are no force in the writ petition warranting interference under Article 226 of the Constitution of India. The petitioner, if so advised, is at liberty to assail the order impugned by filing appeal. The writ petition is accordingly dismissed.
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