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TMI Blog2016 (11) TMI 1539X X X X Extracts X X X X X X X X Extracts X X X X ..... nt notice. Since it was found that the assessee had filed fallacious returns, a penalty of Rs. 33,51,750, being the double tax sought to be evaded, was also imposed under section 67 of the Kerala Value Added Tax Act, 2003 ("the Act", for short). The assessee filed two appeals under section 60 of the Act for the assessment year 2011-12, the first against the order of the best judgment assessment completed by the assessing authority under section 24 of the Act and the second against the order of penalty imposed under section 67 of the Act. The appeal filed by the assessee against the order confirming the best judgment assessment was dismissed and the appeal filed against the order of penalty was modified substantially by the first appellate authority directing the assessing authority to quantify the turnover, for the sole purpose of quantification of the penalty, after verification of the documents, including purchase bills. The orders of the first appellate authority was challenged by the assessee before the Kerala Value Added Tax Appellate Tribunal, Additional Bench, Kozhikode ("the Tribunal", for short). However, the Tribunal dismissed the appeals confirming the orders of the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, admittedly, filed an untrue and incorrect return. The Tribunal, being the final statutory authority for assessment of facts, we see no reason, in view of the elaborate consideration of all relevant factors, documents and materials on record, to interfere in any manner with the findings of the Tribunal. We are, therefore, of the opinion that the order of the first appellate authority in the matter of penalty proceedings, which has the effect of reducing the quantum substantially, since the turnover, for the purpose of quantification of penalty, has been directed to be assessed after verification of the documents, has already afforded the petitioner substantial relief. We see no further reason to modify the said order. Quad hoc O. T. Rev. No. 71 of 2016, which is against the order of the Tribunal confirming the appellate order of the first appellate authority approving the assessment order of the assessing authority under section 24 of the Act, the assessee contends that they ought to have been allowed by the assessing authority to revise the incorrect return filed by them, since all thetransactions were actually accounted in the books of account and no variation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echnical reasons as are enumerated in section 22(1) of the Act, but is a case where it was rejected for having been filed with confutative intentions. It is, therefore, includible that the petitioner cannot thereafter be heard to say that he should have been given an opportunity under section 22(2) of the Act for filing a fresh return curing the defects. This is more so because, what the petitioner wants to cure is not the defects in his returns but deliberately entered wrong information in it knowing it to be untrue and for such purpose, he cannot be given an opportunity nor can such plea be condoned in law. We have, therefore, no doubt in our mind that the petitioner, after having filed a specious return, cannot be allowed to have the benefit of filing a fresh return under section 22(2) of the Act. As regards his contention regarding section 42(2) of the Act, that section relates to the filing of the annual return and is not applicable to the facts of this case, since, here the petitioner was required to file monthly returns within time. It is incontrovertible from the established and admitted facts that the assessee had filed a conter-factual untrue return deliberately in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. In normal circumstances, this prayer should not and cannot be countenanced, the factum of suppression having been proved and established by the very fact that the assessee had filed returns showing incorrect figures. However, we note that in this particular case, the orders of penalty have been modified by the first appellate authority directing the assessing authority to assess the tax after verification of the documents and books of account maintained by the assessee. The particular circumstances of this case is that the assessee had maintained true and correct books of account, but had deliberately filed incorrect returns for the reason, according to him, that he wanted to delay the payment of tax. This attitude of the petitioner or any other assessee can never be countenanced and condoned and requires to be deprecated in the strongest manner as is available. However, the fact that no omission or suppression was seen in the books of account maintained by the appellant at the time of the order and that there are no specific observations in the order of penalty noticing such omissions or suppressions, we are of the view that the petitioner can be granted a certain amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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