M/s. Paul Varghese vs. CCT, [2013] 64 VST 6 (Ker)

FACTS
The Petitioner had opted for simplified procedure of assessment u/s. 17 (4) of the Act and the assessment was completed accordingly, subsequently, upon investigation, the dealer was reassessed and subjected to penalty u/s. 17(5A) of the Act. Further, the dealer was also subjected to penalty u/s. 45A of the Act.

The dealer filed a writ petition before the Kerala High Court against the levy of penalty under the general provision of the act contained in section 45A of the Act particularly when penalty order for same offence u/s. 15(5A) was levied and accepted.

HELD
Admittedly, the liability u/s. 17(5A) of the act for levy of penalty upon reassessment of an order of simplified assessment passed u/s. 17(4) of the Act had become final. The dealer is not liable to be punished for the same offence by referring to the general provision of section 45A as to the failure to maintain proper accountants and non response to the notice, which stands on a much lower pedestal. Even though sections 17(5A) and 45A are distinct and different, governing separate situations, the offence involved is measured in greater scales, imposing punishment in a mandatory manner, that too by “three times” of the tax effect in respect of the years 1998- 1999 and 1991-2000, while leaving the rest in respect of 2000-2001 as the turnover did not touch the limit to suffer any tax liability in respect of 2000-2001 for imposing the “mandatory penalty” u/s. 17(5A), there is no question of considering the same for imposing the “discretionary penalty” u/s. 45A as well. When a “special provision’ is there the “general provision” has to be excluded, so as to give way to the former. In the instant case, section 17(5A) is the special provision and section 45A is the general provision, which in term has to yield to the former. Accordingly, the High Court allowed writ petition filed by the dealer and levy of penalty u/s. 45A of the Act was set aside.