TMI Blog2002 (2) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is manufacturing wheat products, such as atta, maida and sooji from wheat in its factory at Kanjikode. During the year 1992-93 petitioner filed tax returns claiming exemption for the entire turnover being sales turnover of wheat products. Petitioner, being the first seller of wheat product in the State, according to the sales tax authorities he has to pay tax at the rate of 4 per cent. The Karnataka High Court in New Swastik Flour Mill v. State of Karnataka [1992] 84 STC 49 as well as the Patna High Court in Dhanbad Flour Mills v. State of Bihar [1989] 75 STC 47 held that atta, maida and sooji are products made out of wheat though were different in form but wheat in substance and that tax is leviable only at first stage by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was vacated in 1994. Petitioner paid the entire amount of tax due in instalments. After payment of the entire amount, assessment was made by exhibits P7 and P8. Thereafter Deputy Commissioner issued notice regarding imposition of penalty in view of the filing of the incorrect returns under section 45A of the Kerala General Sales Tax Act, 1963. Section 45A(1)(d) of the Act is as follows: "45A. Imposition of penalty by officers and authorities.-(1) If the assessing authority or the Appellate Assistant Commissioner is satisfied that any person,- (a) to (c).................... (d) has submitted an untrue or incorrect return; or (e) to (g)..................... such authority or officer may direct that such person shall pay, by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1991-92. During the months of April, May and June, 1991 the petitioner filed returns in form No. 9 and paid sales tax at the rate of 4 per cent on the sales turnover of wheat products. From July 1991 onwards, the petitioner filed returns in form No. 9 claiming exemption on the sales turnover of wheat products claiming it declared goods. The firm continued claiming exemption on the sales turnover of wheat products till March, 1993....The petitioner objected to the above proposal stating that no tax was collected on the basis of the High Court stay order and it is not liable to pay sales tax.....The High Court of Kerala in C.M.P. No. 10793 of 1991 in O.P. No. 6500 of 1991-W dated June 27, 1991 had directed the assessing authority no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under section 45A is quasi criminal. The only contention raised by the respondents in justification of exhibit P6 order is that the Supreme Court set aside the decision of the Karnataka High Court the assessee ought to have paid the amount and atleast when the stay obtained by assessee from this Court was vacated, the amount should have been paid. It is the case of the petitioner that they paid the entire amount when the stay was vacated in instalments and it was accepted by the revenue and assessment was made only after payment of the amount. Penalty notice was also issued after paying the amount. So it cannot be said that the assessee has filed untrue and incorrect return. 5.. According to the department, petitioner could have filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit also the only contention raised regarding the justification of payment of penalty is as follows: "The order of the second respondent is erroneous in law, facts and material evidence of the case. Penalty proceedings were initiated by the assessing authority after the disposal of the original petition and the petitioner failed to file the revised return and pay tax even after the disposal of the original petition. The petitioner has to file true and complete return of his business transaction as per the provisions of the Kerala General Sales Tax Act, 1963. The returns already filed being incorrect and incomplete with the passing of the judgment in Rajasthan Roller Flour Mills Association v. State of Rajasthan [1993] 91 STC 408 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the assessee. Petitioner did not file an untrue or incorrect return. 7.. Another submission by the learned Special Government Pleader for Taxes is that since it is a suo motu revision, the proper course is to file an appeal before the High Court and not an original petition. Original petition was admitted on June 9, 1998. Government Pleader undertook that till the original petition is disposed of, recovery proceedings will not be made and the matter was pending before this Court for about four years. Further it is a suo motu revision under section 45A(5) of the Kerala General Sales Tax Act, 1963 and no appeal is provided under the Act against such orders. Even if appeal is maintainable after the pendency of writ petition for abou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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