Dismissed

Antony George v. Sales Tax Officer,Palai

Kerala HC5 Mar 2012WP(C)/7355/2006

Case brief

AI extract

What is this about?

The Court examined the challenge to sales tax proceedings at the final stage under KGST against an unregistered dealer. Upholding the assessing authority's order based on correct turnover figures after a clerical error was rectified, the Court dismissed the writ petition due to delay but allowed payment in instalments with recovery proceedings stayed.

What did the court decide?

Petitioner permitted to clear outstanding liability in three equal monthly instalments; recovery proceedings kept in abeyance.

Antony George Vs Sales Tax Officer,Palai — Kerala HC (2012) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933

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WP(C).No. 7355 of 2006 (A)

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PETITIONER(S):

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ANTONY GEORGE, EDATTU HOUSE, ANTHINADU, PALA, KOTTAYAM.

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BY ADV. SRI.SEBASTIAN THOMAS.

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RESPONDENT(S):

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1. THE SALES TAX OFFICER, PALAI.

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2. STATE OF KERALA,

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REP. BY ITS SECRETARY (TAXES), SECRETARIAT, THIRUVANANTHAPURAM.

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3. THE PLANTATION CORPORATION OF KERALA LTD.,

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REP. BY ITS GENERAL MANAGER (SALES), KOTTAYAM.

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4. THE TAHSILDAR, REVENUE RECOVERY, PALA.

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R1, R2 & R4 BY SR. GOVT. PLEADER MR.S. SUDHEESH KUMAR. R3 BY SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE. ADVS. SRI.MITHUN MARKOS, SC, SRI.JOSEPH MARKOSE.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 7355 of 2006 (A)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	COPY OF THE CERTIFICATE ISSUED BY 3RD RESPONDENT DATED 24/07/2002 TO THE PETITIONER.
EXT.P1A	COPY OF THE LETTER DATED 24/07/2002 ISSUED BY 3RD RESPONDENT TO THE PETITIONER.
EXT.P2	COPY OF THE ORDER DATED 30/10/2003 OF DY. COMMISSIONER COMMERCIAL TAXES, PATHANAMTHITTA.
EXT.P3	COPY OF THE ASSESSMENT ORDER DATED 29/07/2003 OF 1ST RESPONDENT.
EXT.P3A	COPY OF THE DEMAND NOTICE DATED NIL ASSESSMENT YEAR 96-97 ISSUED BY 1ST RESPONDENT.
EXT.P4	COPY OF THE ORDER DATED 19/12/2003 OF APPELLATE ASST. COMMISSIONER OF COMMERCIAL TAXES, KOTTAYAM.
EXT.P5	COPY OF THE LETTER DATED 22/01/2004 ISSUED BY 1ST RESPONDENT.
EXT.P6	COPY OF THE NOTICE DATED 15/04/2004 ISSUED BY 1ST RESPONDENT.
EXT.P7	COPY OF THE ORDER DATED 03/05/2004 ISSUED BY 1ST RESPONDENT.
EXT.P8	COPY OF THE NOTICE OF SALE OF IMMOVABLE PROPERTY DATED 12/01/2006 ISSUED BY 4TH RESPONDENT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.A. TO JUDGE

rs.

P.R.RAMACHANDRA MENON,J.

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= = = = = = = = = =

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W.P.(C) No.7355 of 2006

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= = = = = = = == = = = = = Dated this the 5th day of March, 2012

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J U D G M E N T

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The correctness and the sustainability of the

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proceedings taken by the respondents in realising the sales tax at two different stages, that is at the first point of sale and the last point of sale, as provided under the fifth schedule to the KGST Act in respect of the commodity (rubber) when the maximum rate to be fully satisfied at the first stage itself, if the said sale is to an unregistered dealer, is the point involved.

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The case of the petitioner is that he purchased rubber from the third respondent in the year 1996-97 for a total sale consideration of Rs.21,76,000/-. He had deposited a total sum of Rs.27,56,190/- which was inclusive of the stipulated income tax , sales tax, surcharge and such other charges. It is the case of the petitioner that he suffered a

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W.P.(C) No.7355 of 2006

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huge loss and had to sell the commodity for a lesser price. It is also admitted that the petitioner was not a registered dealer at the time of transaction and as such, by virtue of the mandate under the statute, he was made to pay the total tax payable at the two different stages ie 10% at the first point and 2% at the last point, thus effecting the tax payment to the tune of 12% as certified by the third respondent by Ext.P1 / P1(a).

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In the course of the proceedings, on coming across certain discrepancies with regard to the transaction and accounts, the concerned authority imposed a penalty to the tune of Rs. 1,65,370/- being the double the amount of tax evaded in respect of the transaction and a further penalty of Rs. 10,000/- for not taking registration under the KGST Act, obviously for the reason that the admitted sale consideration was more than Rs.2,00,000/-, for which registeration was a must. However, on filing revision petition, the said order was set aside by the concerned authority as borne by Ext.P2. Later, the assessment was

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W.P.(C) No.7355 of 2006 3

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finalised by the concerned authority as per Ext.P3, imposing a tax liability to tune of Rs. 82,686/- . The petitioner approached this Court challenging the same, by filing W.P(C)No.18152 of 2003, which was disposed of relegating

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the petitioner to avail the statutory remedy. It was accordingly, that an appeal was preferred and the appellate authority, after considering the plus and minus points modified the Ext.P3 assessment by passing Ext.P4 order. As per Ext.P4, the assessing authority was directed to accept the books of accounts maintained by the petitioner,however sustaining the finding and reasoning in respect of the tax levied at the second point of sale, as assessed by the assessing authority. The fact remains that Ext.P4 passed by the Appellate Authority has not been subjected to challenge by the petitioner.

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While so, the petitioner was served with Ext.P5 proceedings recomputing the actual tax liability, pursuant to Ext..P4 order passed by the Appellate Authority. As per the said proceedings, a total sum of Rs.4,351/- was shown

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W.P.(C) No.7355 of 2006 4

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as the balance tax payable at the rate of 2%, with 10% sur charge ie, Rs.435/- and thus for a total sum of Rs.4,786/-. According to the petitioner, since the said amount was only a megre one, he did not propose to have it challenged. But the said proceeding was sought to be revised by Ext.P6 notice issued under Section 45 of the KGST Act, whereby it was pointed out that the books of accounts actually revealed the admitted sale consideration of Rs. 21,76,000/and it was sold for a sale consideration of Rs.21,75,753/- . As such, the taxable turn over was to be reckoned as Rs.21,75,753/- instead of Rs.2,17,555/- as per the books of accounts.

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Ext.P6 notice, though was issued inviting the objections if any, it is revealed from the materials on record that the petitioner did not file any objections in response to the said notice. There is no averment to the said effect in the writ petition as well. The assessing authority, in the said circumstances, passed the final order as borne by Ext.P7 dated 3-5-2004 accepting the figures as reflected

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W.P.(C) No.7355 of 2006 5

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from the books of accounts, as ordered by the Appellate Authority vide Ext.P4 and fixed the total tax liability at the rate of 2% in respect of the second stage ie, the last sale of rubber in the State at Rs.39,164/- and surcharge at 10% as Rs.3,916/-.

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The first respondent has filed a counter affidavit seeking to sustain the impugned proceedings. It is asserted in the said counter affidavit that no objection whatsoever was submitted by the petitioner, despite the service of Exts.P5 and P6, which were sent by the registered post. Ext.P5 was in fact served on the petitioner on 24-4-2004 and Ext.P7 final order was also passed and the same along with the demand notice was served to the petitioner by registered post on 19-5-2004. In view of the fact that the assessment at the second stage is upheld by the Appellate Authority as per Ext.P4 and since the same admittedly has not been challenged, there cannot be any grievance for the petitioner with regard to the said instance. That apart, the specific direction given by the Appellate Authority was to

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W.P.(C) No.7355 of 2006 6

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accept the books of accounts and to reckon the figures given there in. Though in Ext.P5, there is a mistake with reference to the actual figure whereby one digit has been inadvertently omitted (showing the figure as Rs.2,17,555/in place of Rs.21,75,753/- the same was sought to be corrected by issuing Ext.P6 with reference to actual figures. Inspite of granting an opportunity to file objection, the said opportunity was not availed of by the petitioner. It was accordingly that Ext.P7 order was finalised by the assessing authority which is not assailable under any circumstances, either on facts or in law. That apart, going by the facts and figures, Ext.P7 order was passed by the concerned authority as early as on 03-05-2004,whereas the petitioner chose to approach this Court nearly after two years. On this count also, intereference is not possible. Under such circumstances, this Court finds that the writ petition is devoid of any merit and the same is dismissed accordingly.

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Considering the persuasive submissions made by

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W.P.(C) No.7355 of 2006 7

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the Learned Counsel for the petitioner, the petitioner is permitted to clear the outstanding liability by way of 'three' equal monthly instalments , the first of which shall be effected on or before 20-3-2012, to be followed by the remaining instalments to be effected on or before the 20 th of the succeeding months . Subject to this, the recovery proceedings, if any, shall be kept in abeyance for the time being . It is also made clear that, if any default is committed by the petitioner in satisfying the liability as above, it will be open for the respondents to proceed with further steps for realising the due amounts in a lump.

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P.R.RAMACHANDRA MENON .

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JUDGE

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smm

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W.P.(C) No.7355 of 2006 8

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W.P.(C) No.7355 of 2006 9

Antony George v. Sales Tax Officer,Palai

Case brief

What is this about?

What did the court decide?

Antony George v. Sales Tax Officer,Palai

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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