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2010] Sasi Road Finishers & Engg. Contractors v. State of Kerala (Ker.) 243
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upon assessee for attempted evasion of tax under section 47(6) - Held,
yes [Section 47(6) of the Kerala Value Added Tax Act, 2003]
FACTS
The lower authorities levied penalty under section 47(6) upon the assessee
for the reason that at the time of transport of goods, the assessee did not
have registration under the Act.
On revision :
HELD
It was evident from the records that the assessee maintained the registration
earlier which was cancelled on account of closure of business in
Kerala. In any case, the transaction which led to levy of penalty under
section 47(6) was transport of capital goods, which were machinery for
road work, from Kerala to outside State. Since the transaction did not
involve any sale, no penalty could be levied for attempted evasion of tax
under section 47(6). Therefore, the penalty levied upon the assessee
deserved to be cancelled. [Para 2]
C.K. Sreejith for the Appellant. Mohammed Rafiq for the Respondent.
ORDER
C.N. Ramachandran Nair, J. - Special Government Pleader appearing for
the respondent took notice on admission. We have heard counsel for the
petitioner and Special Government Pleader.
2. After hearing both sides and after going through orders of the lower
authorities including that of the Tribunal, we find penalty is levied for the
reason that at the time of transport of the goods the petitioner did not have
registration under the KVAT Act. However, it is seen from records that
petitioner maintained the registration earlier, which according to the
petitioner was cancelled on account of closure of business in Kerala. In
any case the transaction which led to levy of penalty under section 47(6)
is transport of capital goods which are machinery for road work from
Kerala to outside State. Three other consignments were also detained and
released after collecting security. However, in all these three cases proposal
for penalty was dropped finding that there was no attempt of evasion
of tax. On the face of it, there is no sale of goods involved and it is only
transfer of capital goods from one State to another by the dealer who has
business in more than one State. Since transaction does not involve any
sale, no penalty can be levied for attempted evasion of tax under section
47(6) of the KVAT Act. We, therefore, allow the revision case by cancelling
the order of the Tribunal sustaining the penalty. The Bank Guarantee
should be released to the petitioner on production of copy of this judgment.
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GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 119