C. N. RAMACHANDRAN NAIR, J. -
(1.) THE petitioners in all these Original Petitions are dealers under the Kerala General Sales Tax Act, 1963, hereinafter called the "act" challenging the constitutional validity of section 17 (5a) of the Act under which penalty is levied on them for evasion of tax. Section 17 (5a) provides for penalty on a "dealer" who is originally assessed under section 17 (4) of the Act, accepting final tax-return and statutory declaration filed by him in support thereof and later when escaped tax is assessed by revising the assessment originally completed under section 17 (4) of the Act. THE penalty provided under section 17 (5a) is mandatory in nature and is at three times the differential tax, that is the difference between the tax originally assessed under section 17 (4) and the tax reassessed under other provisions of the Act mainly section 19 (1) which provides for assessment of escaped tax by the assessing officer. In fact, a reassessment is contemplated under the Act when the assessing officer himself detects evasion of tax in the original assessment, in exercise of his power under section 19 (1) of the Act or when the Deputy Commissioner in exercise of suo motu revisional power under section 35 of the Act passes orders directing revision of assessment. Besides these two situations proviso to section 17 (4) of the Act itself provides for scrutiny of assessments at random completed under section 17 (4) of the Act. THE scheme of section 17 (5a) is levy of penalty consequent on revision of every assessment originally completed under section 17 (4) and such penalty is automatic and is irrespective of the provision of the Act under which original assessment is revised. Eventhough revision of assessment and consequent penalty after original assessment under section 17 (4) are possible under the three provisions referred above, in the cases of the petitioners in this Court, the revised assessments are issued by the assessing officer after detection of evasion of tax on the basis of some material or other under section 19 (1) of the Act. THE petitioners have also filed appeals against the revised assessments under which penalty under section 17 (5a) was also levied. THErefore if the appeals are allowed in part or in full, petitioners will get consequential relief in penalty levied under section 17 (5a) also, because the penalty under section 17 (5a) is directly proportional to the differential tax which varies with changes in reassessment orders. However, the petitioners have approached this Court challenging the constitutional validity of section 17 (5a) on the ground that even if the reassessment is sustained in part or full, levy of penalty under the mandatory provisions of section 17 (5a) is arbitrary and discriminatory because in all other cases of evasion of tax under the Act, penalty is discretionary and the maximum penalty provided in the cases of any evasion of tax provided under section 45a of the Act is only double the amount of tax as against the three times provided under section 17 (5a ). In other words, according to the petitioners, even if additional levy of tax in reassessment proceedings is sustained in appeal, the same should not lead to automatic penalty at three times such tax under section 17 (5a ). THErefore they are challenging the constitutional validity of section 17 (5a ). Of course, in the alternative, they are also challenging the penalty orders on the ground that the provisions of section 17 (5a) are not attracted to the facts of their cases, assuming the section is found valid by this Court.
(2.) IN order to appreciate the scope of impugned section, I feel it is better to extract the section in the judgment for easy reference. Therefore the impugned section with allied provisions are extracted hereunder : " 17 (4) Notwithstanding anything to the contrary contained in sub-sections (3) and (4a) the assessing authority shall accept the return for any year, the assessment relating to which has not been completed, along with the statements prescribed, which are in accordance with the provisions of the Act and rules made thereunder, submitted by any dealer, whose total turnover specified in the return submitted by him for the year for which the assessment relates does not exceed rupees fifteen lakhs or by a dealer having dealings only in goods which are completely exempted from tax or by a dealer having dealings only in non-taxable points of goods coming in the First, Second or Fifth Schedules or by a dealer the tax payable by him does not exceed rupees five thousand for the year irrespective of any limit in turnover and assess the dealer on the basis of such return : Provided that every year out of the assessments relating to the preceding year to be completed under this sub-section, the Board of Revenue may select twenty per cent by random sampling for detailed scrutiny of the accounts and other records and if the dealer is found to have not accounted any purchases or sales or otherwise attempt to evade payment of tax, the previous five years assessments' of the dealer may be reopened and escaped turnover shall be assessed or levy of tax be made after following the procedure prescribed in subsection (3) of section 17 and the limitation prescribed under any of the provisions shall not apply to such cases. Provided further that where the return filed by any dealer falling under any of the categories referred to in this sub-section is not accompanied by any statement required by this Act or the rules made thereunder in support of any claim or exemption from, or reduction in, the rate of tax, the assessing authority shall, after due notice to the dealer, complete the assessment on the basis of the turnover conceded in the return, disallowing the claim for such exemption or reduction to the extent to which it is not proved. 17 (5a ). Where on reopening of an assessment completed under sub-section (4), in respect of any dealer, it is found that the amount of tax, if any, paid by such dealer is less than the amount of tax which he is liable to pay on such fresh assessment, the assessing authority shall direct such dealer to pay the difference between the amount of tax already paid by him and that arrived at on such fresh assessment, together with thrice the amount of such difference as penalty. "
I have heard all the counsel appearing for the petitioners and also Special Government Pleader appearing for the respondents.
The provisions of section 17 (4) provided for assessment based on returns filed was in existence for quite a long time. Section 17 (4) provides for assessments in the case of three categories of dealers (assessees ). They are (1) dealers whose total annual turnover does not exceed rupees fifteen lakhs; (2) assessees having dealings only in goods which are completely exempted from tax or assessees having dealings at non-taxable points of sale or purchase of goods coming under the First, Second or Fifth Schedules - to the Act; and (3) assessees whose tax liability does not exceed rupees five thousand in a year, irrespective of any limit in turnover. Eventhough the petitioners have a case that the Commissioner of Commercial Taxes through circulars issued compelled the assessing officers to complete the assessments under section 17 (4) of the Act, the procedure for assessment contemplated under the relevant Kerala General Sales Tax Rules, 1963 is optional in nature and in order to avail the benefit, the assessees will have to comply with rule 18a (1a) of the Kerala General Sales Tax Rules, which provides for filing of quarterly returns along with payment of tax. Further the annual return filed should be accompanied by statements in form No. 21c prescribed under the Rule. Until the assessment year 1992-93 option for assessment under section 17 (4) could have been exercised by the assessees by following the procedure prescribed under rule 18a as stated above. However, by an amendment by Act 13 of 1993 with effect from April 1, 1993 the assessees who have not opted for assessments under section 17 (4) had the option to request for such assessments in respect of those assessments pending completion by filing statements prescribed, that is form No. 21cc with required documents attached thereto. In fact sub-rules (1b) and (1c) of rule 18a which provided for the filing of application for permission for filing of returns for assessment under section 17 (4) and the assessing officer granting approval in the year itself, were omitted. Consequently, assessees could by filing form No. 21cc in pending assessments exercise option for assessment under section 17 (4) and if the officer accepts it, he has to issue assessment order in the very same form itself that is form No. 21cc as provided under sub-rule (1d) of rule 18a or if the officer does not accept it, he can reject the request under rule 18a (2 ). Therefore the penalty provision, namely, section 17 (5a) introduced from April 1, 1998 applies to assessments of earlier years, that is for the years prior to 1998-99 also, if those assessments were pending and assessees filed declarations in form No. 21cc with documents accompanied thereto and opted for assessment under section 17 (4) after April 1, 1998, and when such assessments completed under section 17 (4) are revised leading to levy of higher amount of tax. Though the petitioners contend that penalty under section 17 (5a) cannot be levied for any year prior to 1998-99 as it was introduced with effect from April 1, 1998, the said argument is not tenable because those who exercised option for assessment under section 17 (4) in pending assessments after April 1, 1998 and whose assessments are so completed will necessarily and inescapably take the consequence of penalty under section 17 (5a) if the original assessments completed under section 17 (4) are revised leading to higher demand of tax.
(3.) THE main contention raised by the petitioners relying on article 14 of the Constitution of India is on the ground that section 17 (5a) is arbitrary and discriminatory for the reason that the tax evasion of any kind to any extent is subjected to penalty at the maximum of twice the amount of tax as provided under section 45a of the Act that too at the discretion of the officer based on adjudication while the penalty provided under section 17 (5a) is automatic and is at three times the difference between the tax originally assessed under section 17 (4) and later revised under section 19 (1) or any other provision, without leaving any discretion to the assessing officer in regard to the levy or the extent thereof. In order to appreciate the contention, it has to be examined whether the petitioners belong to same class of assessees to whom penalty under section 45a of the Act is provided for same offence, that is evasion of tax. I cannot agree with the argument of the petitioners because petitioners by opting for assessment under section 17 (4) constitute a separate class in themselves on whom the assessing officer has reposed confidence and assessments are completed accepting the returns and the statements filed in support thereof. In other words petitioners do not undergo the normal process of assessment which involves wherever required by the officer scrutiny of accounts, issuing of pre-assessment notice, filing of reply and contesting the proposal for assessment made by the assessing officer. Section 17 (4) only visualises completion of assessment in terms of the claim made by the assessees who are presumed to be honest in the declarations made by them in the returns filed and the statements accompanying thereto, namely, form No. 21cc and the documents attached thereto. In such cases it is mandatory for the assessing officer to complete the assessment without scrutiny, but after prima facie checking the returns and documents furnished by the petitioners. THE accounts are not called for, for verification and the officer accepts the claims of the assessees made in the returns at the time of completion of assessment under section 17 (4) of the Act. This class of assessees cannot be treated equally with other assessees who leave it to the officers to complete the assessment by scrutiny of the accounts and detailed examination of the claims made in the returns. So far as the assessees who do not opt for assessment under section 17 (4) are concerned, it is the responsibility of the assessing officer to scrutinise the returns of those assessees, compare the figures declared with reference to the bookresults by scrutiny of the books of accounts, and to complete the assessment in accordance with statutory provisions by issuing notice under section 17 (3) containing proposals for assessment even by rejecting the turnover declared and claims made by the assessee, and to make a proper assessment to protect the interests of the Revenue after giving opportunity to the assessee. On the other hand in the assessment contemplated under section 17 (4) there is no proper adjudication of the claims made by the assessee. THE department completing assessment under section 17 (4) based on the return of the assessee and supporting declarations is at the risk and mercy of the assessee's honesty. In the latter category the provision for higher penalty under section 17 (5a) is an additional disincentive and a deterrent against assessee's making bogus claims and against filing untrue returns while availing benefit of assessment based on returns under section 17 (4 ). THEre can be no dispute that the assessment under section 17 (4) though applicable to specific categories of assessees is not mandatory but only optional and those who exercise such option and deriving the benefit or advantage of assessment based on their own returns and statements without scrutiny are only subjected to a higher penalty under section 17 (5a ). THE petitioners contended that through circulars 28/95 and 30/99 issued by the commissioner of Commercial Taxes (old Board of Revenue) assessments under section 17 (4) were made mandatory for the categories of assessees covered under section 17 (4) and the Commissioner directed the assessing officers to complete the assessments under section 17 (4) and for failure threatened them with disciplinary proceedings and therefore the officers completed the assessments under section 17 (4) against the will of the assessees. This allegation is denied in the counter-affidavit. THE respondents' contention is that by circulars the officers were only directed not to deny the benefit of section 17 (4) assessments to those assessees who exercised option by filing form No. 21cc but to complete such assessments under section 17 (4) itself, i. e. , without going for scrutiny-assessments. Eventhough it is a settled position that circulars are binding on the assessing officers, I am unable to accept this contention because the assessment under section 17 (4) is possible only on the assessee furnishing a declaration and statement in form No. 21cc in terms of rule 18a (1a) of the Rules accompanied with the documents prescribed therein. THE furnishing or declarations in form No. 21cc under rule 18a is the exercise of option even in pending assessments for completion of assessment under section 17 (4) and therefore the petitioners cannot contend that the assessments completed under section 17 (4) are forced on them and they did not exercise such an option. It is to be noted that the assessment order under section 17 (4) itself is issued in the copy of the form No. 21cc furnished by the assessee as provided under rule 18 (1d) of the Kerala General Sales Tax Rules. I make it clear that penalty levied under section 17 (5a) in cases where original assessments are completed under section 17 (4) without the assessees opted for it by filing form No. 21cc but completed by the officers following the circulars above referred are illegal and the assessing officers shall revoke such penalty orders. In the result, I hold that the petitioners who have exercised option under section 17 (4) that is assessment based on the returns and statements filed by them constitute a different class from the other assessees, whose assessments were completed after verification of accounts and after following the procedure prescribed under section 17 (2) or (3) of the Act. While in the case of those who opt for section 17 (4) assessments the assessees have to be careful in regard to their returns and statements filed in support thereof, because the assessing officer acts upon such declarations, while in the case of other assessee, it is for the officer to be careful in completion of assessments and the mere escapement of any tax in the latter cases does not lead to penalty and the assessees can be held responsible for evasion of tax and penalty only if the same is attributable to them. THErefore the discrimination alleged by the petitioners and violation of article 14 do not exist and I reject this contention.
The next contention raised by the petitioners is that mens rea is a necessary ingredient of penalty as is held by the Supreme Court in Kunnathat Thathunnai Moopil Nair v. State of Kerala case reported in AIR 1961 SC 552 and in the case of Kantilal Babulal and Bros. v. H. C. Patel, Sales Tax Officer  21 STC 174. According to them the provision for automatic penalty without leaving any discretion to the officers and without establishing any guilt on the assessees provided under section 17 (5a) is arbitrary and unsustainable. Here again, I do not agree with the petitioners' contention because the requirement of mens rea wherever necessary is loaded by the Legislature in the section itself. However, there is no bar against the Legislature providing statutory offences which are done in many statutes. In such cases, the existence of certain situations will automatically give rise to presumption of violation of the provision leading to penalty. This Court also held in the Commissioner of Income-tax, Kerala v. Gujarat Travancore Agency case, reported in  103 ITR 149 [fb] which was confirmed by the Supreme Court and reported in Gujarat Travancore Agency v. Commissioner of Income-tax, Kerala  177 ITR 455 in the context of Income-tax Act holding that penalty is tenable without any mens rea being established if the statute so provides. All what section 17 (4) contemplates is that assessees who opt for a virtual self-assessment under section 17 (4) are entitled to the same and such claims will be allowed based on the return filed and statements filed by him in support thereof. The department by accepting his returns spares him from the agony of undergoing a regular assessment by production of books of accounts and establishing the correctness and completeness of the returns. However, any such assessee found to have evaded tax which will be presumed in the event of reassessment leading to determination of higher amount of tax, will be liable to a higher penalty which is three times the differential tax. Therefore the penalty under section 17 (5a) is a statutory offence created without the requirement of mens rea loaded therein. However, it has to be noted that section 17 (5a) operates in the reverse direction also because as and when reassessment is cancelled or modified the penalty automatically gets cancelled or reduced. Therefore it is not as if the assessee is without a remedy. If revised demand of tax contested in appeal is cancelled or reduced penalty levied under section 17 (5a) also goes along with the tax and there is no need to independently contest the levy of penalty. However, so far as the penalty levied under section 45a is concerned, it is an independent proceedings and the reduction of tax assessed in appeal will not automatically lead to cancellation of penalty, but penalty has to be independently contested in revision before the revisional authorities. Though both the penalties under section 17 (5a) and section 45a are for evasion of tax, they apply differently and one cannot be equated with the other in all respects. Therefore the contest against the validity of section 17 (5a) as arbitrary for want of requirement of mens rea as in section 45a is devoid of any merit and the same is rejected.;