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TMI Blog2015 (10) TMI 2632X X X X Extracts X X X X X X X X Extracts X X X X ..... im, and sells the finished apartments, as per agreements, to various buyers on terms and conditions stipulated in the agreement for sale. In the writ petition, the petitioner is aggrieved by Exts.P9 and P10 orders of penalty that were passed against the petitioner under Section 67 (1) (d) of the Kerala Value Added Tax Act, hereinafter referred to as the KVAT Act. The essence of the contentions in the writ petition is that the respondent Intelligence Officer had, while passing Exts.P9 and P10 orders, merely followed the decision of the Hon'ble Supreme Court in the case of K. Raheja Development Corporation v. State of Karnataka [2005 (5) SCC 162] without going into the factual aspect of the case of the petitioner that, it was not engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also find however, that there is no consideration by the respondent Intelligence Officer, of the aspect of whether the petitioner had willfully evaded payment of tax that was due and payable by him. This aspect assumes importance in matters of penalty because, the decision of the Supreme Court in E.I.D. Parry (1) Ltd. v. Assistant Commissioner of Commercial Taxes and Another [2000 (Vol.117) STC 457] clearly mandates that, before imposition of a penalty on an assessee, the authority concerned must be satisfied of the existence of the necessary mens rea as would attract the penal provisions under the Act. In particular, it was stated by the Supreme Court that, if the correct position of law was in doubt, and the assessee had not included amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interests of justice, and to avoid a multiplicity of proceedings, that directions should be issued to the assessing authority of the petitioner namely, the Commercial Tax Officer, Works Contract, Kozhikode, to consider the issue of imposition of penalty on the petitioner as well. WP(C) Nos.19797 and 22056 of 2012 The challenge in these writ petitions is against Exts.P3 notice issued by the respondent authority, proposing a penalty under Section 67(1)(d) of the KVAT Act, for the assessment years 2010- 11 and 2011-12 respectively. As the challenge in the writ petitions is against the notices proposing penalty, and in the judgment in relation to WP(C) No.2283 of 2011, I have already directed the assessing authority to consider the aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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