DEPUTY COMMISSIONER OF SALES TAX (LAW), BOARD OF REVENUE (TAXES), ERNAKULAM v. CRESCENT HARDWARES
1980-12-08
K.BHASKARAN, V.BALAKRISHNA ERADI
body1980
DigiLaw.ai
JUDGMENT BALAKRISHNA ERADI, C.J. The State has preferred this tax revision case against the decision of the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode (hereinafter called the Tribunal), in T.A. No. 249 of 1976 on its file allowing the second appeal filed by the assessee and vacating the order of revised assessment passed against the assessee by the Sales Tax Officer in purported exercise of his powers under section 19 of the Kerala General Sales Tax Act, 1963 (for short the Act), and restoring the original assessment. 2. The assessee is a firm dealing in hardware at Kanhangad. The final assessment of the firm for the year 1970-71 had been completed by the assessing officer by an order dated 23rd February, 1972, fixing their taxable turnover at Rs. 9,46,224.54. Subsequently the assessing authority initiated proceedings under section 19 of the Act as per notice dated 19th March, 1975, on the ground that it had been found that the sales turnover of G.I. pipes amounting to Rs. 72,817.68 had been assessed at the rate of 3 per cent instead of the said turnover being assessed at 7 per cent as falling within the scope of the entry 26A of the First Schedule to the Act : "Water supply and sanitary fittings". The assessee filed objections contending that G.I. pipes sold by them did not fall within the scope of the description "water supply and sanitary fittings" contained in entry 26A. The assessing authority overruled this objection and revised the assessment as had been proposed in the notice. The Appellate Assistant Commissioner, before whom the matter was taken by the assessee, confirmed the order of reassessment. On the matter having been carried by the assessee before the Tribunal in second appeal, the Tribunal relied on the pronouncement of this Court in Deputy Commissioner of Sales Tax v. Pai and Co. ([1978] 41 S.T.C. 440.) and held that the sales turnover of G.I. pipes can be assessed only at the general rate and not at the rate provided for "water supply and sanitary fittings". The Tribunal accordingly allowed the appeal filed by the assessee and held that the assessing authority had acted without jurisdiction in revising the order of original assessment and taxing the disputed turnover at 7 per cent. The correctness of the aforesaid view taken by the Tribunal is called in question by the State in this revision. 3.
The Tribunal accordingly allowed the appeal filed by the assessee and held that the assessing authority had acted without jurisdiction in revising the order of original assessment and taxing the disputed turnover at 7 per cent. The correctness of the aforesaid view taken by the Tribunal is called in question by the State in this revision. 3. The scope of entry 26A - "water supply and sanitary fittings" - has been explained by the Supreme Court in Deputy Commissioner of Sales Tax v. Pai and Co. ([1980] 45 S.T.C. 58 (S.C.).) wherein the Supreme Court had occasion to consider, inter alia, the question whether G.I. pipes sold by the assessee in that case fell within the description of "water supply and sanitary fittings". The Supreme Court held that the words "water supply and sanitary fittings" constitute one single expression and the words "water supply ............ fittings" must receive colour from the immediately following words "sanitary fittings" and that consequently G.I. pipes would fall within the description "water supply and sanitary fittings" only if it can be shown that they were meant for use in lavatory, urinals or bath rooms. It was further observed by the Supreme Court that the burden of establishing that the G.I. pipes sold by the assessee in a particular case falls within the description contained in entry 26A is on the revenue. In the case before us there is absolutely no material available on record to indicate as to the purpose for which the G.I. pipes in question had been purchased and utilised. In the circumstances without such material before the assessing authority there was absolutely no warrant for invoking its powers under section 19 of the Act and reopen the assessment that had been already made against the assessee taxing the disputed turnover at the general rate. Hence we consider that the conclusion reached by the Tribunal that there was no justification for the assessing authority to revise the order of original assessment is perfectly correct and legal. The tax revision case is dismissed on this ground. The parties will bear their respective costs. Petition dismissed.