Allowed

Dr.George Jacob v. State of Kerala

Kerala HC7 Jan 2016WA/2063/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the writ appeal, holding that the issue of whether purchase tax was passed on to sellers is a question of fact. It ordered the Assistant Commissioner to examine the appellant's books of accounts, stay revenue recovery proceedings, and decide on the refund claim after hearing both parties.

What did the court decide?

Writ appeal allowed; impugned judgment vacated; Assistant Commissioner directed to examine books of accounts, decide refund issue, and stay revenue recovery proceedings pending final decision.

Dr.George Jacob Vs State of Kerala — Writ and Judicial Review | Kerala HC (2016)

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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 THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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WA.No. 2063 of 2012 () IN WP(C)NO.25491/2010

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AGAINST THE JUDGMENT IN WP(C) 25491/2010 of HIGH COURT OF KERALA DATED 01-08-2012

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APPELLANT(S)/PETITIONER :

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-----------------------

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DR.GEORGE JACOB, PROPRIETOR, WYNAD RESINS, PUNNAPPALA P.O. ERIYAD, WANDOOR, MALAPPURAM DT.

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BY ADV. SRI.R.RAMADAS

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RESPONDENT(S)/RESPONDENTS:

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---------------------------

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1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE COMMISSIONER OF COMMERCIAL TAXES, GOVERNMENT OF KERALA THIRUVANANTHAPURAM.

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3. THE ASSISTANT COMMISSIONER (KVAT) DEPARTMENT OF COMMERCIAL TAXES, MALAPPURAM.

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BY GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOTTATHIL B. RADHAKRISHNAN &

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ANU SIVARAMAN, JJ.

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W.A. No.2063 of 2012

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Dated this the 7^th day of January, 2016

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J U D G M E N T

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THOTTATHIL B. RADHAKRISHNAN, J.

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Heard the learned counsel for the appellant and

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the learned Senior Government Pleader for the

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Department of Commercial Taxes.

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The appellant, a registered dealer, challenges the decision of the learned single Judge repelling his claim for refund of what was remitted by him as purchase tax. The assessments were completed for the years 1997-1998 to 2004-2005, inclusive of those years also, and finalised. Thereafter, the appellant requested adjustment of excess tax paid as per Exts.P2 and P3 and made different claims essentially for refund of the amounts allegedly paid as excess and without adjustments of such excess tax during the period of 19981999 to 2004-2005, the issue arose for decision when revenue recovery proceedings were initiated. The

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W.A. No.2063 of 2012 2

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appellant, therefore, filed the writ petition claiming an order for adjustment of excess purchase tax paid on the raw materials.

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Having heard the learned counsel for the appellant and the learned Senior Government Pleader, what we see is that the learned single Judge attempted to look into the materials and concluded on the basis of the particular SRO, which relates to question of refund. We are of the firm view that the question whether purchase tax was actually collected and paid or whether it was paid by the assessee dealer on his own, without it being collected from his sellers, is a question of fact which has to be determined on the basis of books of accounts and other relevant materials which would be admissible in an enquiry to conclude on that issue. Ends of justice require that an opportunity is extended for this purpose.

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For the aforesaid reasons, we allow this appeal and vacate the impugned judgment and direct the 3^rd respondent to look into the books of accounts and other relevant materials and decide on the issue as to whether

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W.A. No.2063 of 2012 3

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the appellant is entitled to the refund as claimed by him. The fundamental issue that will have to be decided is as to whether the purchase tax paid was not passed on to the sellers of the dealer, who is the appellant before us, by adding the price component. The appellant is directed to mark appearance in the office of the 3^rd respondent at 11.00 a.m. on 03.02.2016. The 3^rd respondent will fix the date of hearing and provide adequate opportunity to furnish materials. Any revenue recovery proceedings referable to the years in question and on the basis of Exts.P5 and P6 will stand stayed till the 3^rd respondent takes a final decision on the issue covered by this judgment.

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Sd/-

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THOTTATHIL B. RADHAKRISHNAN JUDGE

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Sd/-

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ANU SIVARAMAN JUDGE

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/ True Copy /

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P.A. To Judge

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NS/11/01/2016

Dr.George Jacob v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.George Jacob v. State of Kerala

Case brief

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What did the court decide?

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