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TMI Blog2017 (3) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008-2009. 3. As the record reveals, the Intelligence Officer, Department of Commercial Taxes, i.e., the first respondent, insisted on the appellant's paying compounding fee at Rs. 4 lakh. The enhanced demand was based on the subsequent amendment to Section 74 of the Act. Evidently, the amendment was after the assessment year, but before the appellant opted for compounding. 4. Having paid the compounding fee of Rs. 4 lakh rupees under protest, the appellant filed W.P.(C) No.696 of 2010; it was dismissed by a learned Single Judge of this Court. Aggrieved, the appellant has filed the present Writ Appeal. Submissions: Appellant: 5. Sri Harisankar V. Menon, the learned counsel for the appellant, has strenuously contended that the compounding fee is directly related to the period when the offence of tax evasion was alleged to have been committed by the assessee. According to him, under Section 74 of the Act, the assessee was to pay as compounding fee a sum of money equal to the tax so payable. It was besides paying the tax said to have been evaded. 6. The learned counsel has laid emphasis that the compounding fee should always be equal to the tax alleged to have been evaded, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; the offence is made out: It is not an act of generosity. Ipso facto, the offender cannot benefit, say, by taking recourse to any hypertechnicalities. 11. Summing up her submissions, the learned Government Pleader has drawn our attention to M/S. United Construction Co. v. Intelligence Officer and another,[ An unreported judgment dated 20th July 2012 in WPC No.38740/2010] a decision rendered by a learned Single Judge on the same point. Impugned Judgment: 12. Indeed, a perusal of the impugned judgment reveals that the learned single Judge, after examining all the precedents cited at the Bar by the appellant/petitioner, has accepted, in the end, the line of reasoning adopted by this Court in WPC No.38740/2010. Further, the learned Single Judge has distinguished on facts the decisions relied on by the appellant, essentially holding that in all those instances the very charging provisions were brought on to the statute book at a later point in time. 13. Heard the learned counsel for the appellant and Smt. Shoba Annamma Eappen, the learned Senior Government Pleader, apart from perusing the record. Issue: For compounding an offence, which of the compounding fees should be paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial year shall be two lakh rupees. (b) in other cases, a sum of money not exceeding ten thousand rupees. Provided that the Commissioner may by order authorize any officer to compound the offence under this section on payment of a reduced amount. (2) On payment of such amount under sub- section (1), no further penal or prosecution proceedings shall be taken against such person, in respect of that offence. (emphasis supplied) 18. Statutorily speaking, the fee was enhanced to Rs. 4 lakh with effect from 01.04.2009. It pays to remember that the assessment of which evasion was complained ended on 31.03.2009. 19. In Hotel Ambassador (supra) Section 45A of the Kerala General Sales Act, an analogous provision, fell for consideration. While interpreting Section 45A, a learned Division Bench of this Court has also considered the impact of Section 19 of the Act, which provides for an escaped assessment. In that process, their Lordships have held that a reading of Section 45A will 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is said to have committed an act of omission which is also a wrong in the eye of law. Ordinarily, a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Article 20(1) of the Constitution, which declares that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In other cases, however, even though the liability may be enhanced it can only be done by a subsequent law (of course subject to the Constitution) which either by express words or by necessary implication provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erting to the contrary. 28. Indeed, the learned Government Pleader has strenuously contended that compounding is akin to compromise and that the concept of payment under protest is inapplicable therefor. We need not refer to this plea in detail for the appeal may have to fall on a fundamental ground, which obviates any further discussion on the technicalities such as the absence of any luxury to pay under protest, when the payment is voluntary and compounding, a quasi-compromise. 29. Verily the proposition is pellucid in Suresh Seth (supra): With acts amounting to crimes, the punishment to be imposed cannot be enhanced under our constitutional scheme by any subsequent legislation because of Article 20(1), which declares that no person shall be subjected to a penalty greater than that that might have been inflicted under the law in force during the commission of the offence. But the observation was in the context of an offence and penalty. Here, the appellant chose to pay a compounding fee under Section 74 of the Act; fee jurisprudentially carries a different connotation from what a penalty does. We may further lay emphasis that Article 20 (1) of the Constitution, recognising one ..... 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