TMI Blog1979 (7) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... hat any person,- (a) being a person required to register himself as a 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of sub-section (5), be final. (5) The Board of Revenue may, either suo motu or on application, call for and examine the record of any order passed under sub-section (1) or subsection (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 further that no order enhancing a penalty or cancelling the waiver of a penalty shall be passed unless the person affected thereby is given an opportunity of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1974-75. 4. The contention of the assessee was that section 45A of the General Sales Tax Act which authorises imposition of penalty was unavailable in respect *Kerala General Sales Tax (Second Amendment) Ordinance, 1975. Kerala General Sales Tax (Second Amendment) Act, 1976. of the assessment years in question, and the grounds proposed by the impugned notices would not justify the action and, therefore, the imposition of the penalty was unsustainable in law. The learned Judge allowed the writ petition and quashed the notices and orders on two grounds. In the first place, the learned Judge was of the view that the power of imposing penalty under section 45A could be exercised only in the course of the assessment. For this, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by the dealer shall be on the dealer." This is only an enabling power which allows the assessing authority even while making a reassessment of an escaped assessment to resort to the provisions of section 45A and impose a penalty. That would afford no justification for linking section 19(2) with section 45A, and holding that the latter section has no independent existence and can be resorted to only in the course of the assessment proceedings. A reading of section 45A is sufficient to show that it is a separate and independent section and that irrespective of whether the assessment has been completed or not, it is open to the requisite authority to take action under the said section provided the conditions for action are satisfied. We, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion dawned on the officer only subsequent to the commencement of the section, that would suffice to attract penalty proceedings. Support was sought to be derived for the submission by the following passage from the decision of the Supreme Court in the Jain Brothers' case[1970] 77 I.T.R. 107 (S.C.). Considering the provisions of section 297(f) and (g) of the Income-tax Act, 1961, the Supreme Court observed: "It is well-settled that in fiscal enactments the legislature has a larger discretion in the matter of classification so long as there is no departure from the rule that persons included in a class are not singled out for special treatment. It is not possible to say that while applying the penalty provisions contained in the Act of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot viewed in the light of a provision which was not in force at the time of their commission. For these reasons, we are of the opinion that the view taken by the learned Judge that section 45A of the Act had no application to the case is correct and calls for no interference. 7.. The learned Judge had expressed the view that the term "assessing authority", in section 45A of the Act would not include an Intelligence Officer but only the regular assessing authorities contemplated by the Sales Tax Act. The learned Advocate-General invited our attention to the definition of "assessing authority" under section 2(iv) of the Sales Tax Act, as meaning any person authorised by the Government or by any authority empowered to make an assessment. Our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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