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1993 DIGILAW 251 (KER)

ARASAN & CO. v. STATE OF KERALA.

1993-06-02

K.P.BALANARAYANA MARAR, K.S.PARIPOORNAN

body1993
JUDGMENT K. S. PARIPOORNAN, J. - The same assessee is the revision petitioner in this batch of revisions. The Revenue is the respondent in all the four revisions. Identical questions arise for consideration in all the cases. We therefore dispose of the above revisions by this common order. 2. The revisions are filed against a common order passed by the Sales Tax Appellate Tribunal, Thiruvananthapuram, dated March 15, 1991. The said common order was necessitated in view of a remit ordered by this Court in the earlier proceedings between the same parties in T.R.C. Nos. 57 to 60 of 1985 - judgment dated July 3, 1987. The Appellate Tribunal by the common order dated March 15, 1991, allowed the appeals filed by the State and dismissed the appeals filed by the assessee. The short question that arose for consideration before the Appellate Tribunal was the rate of tax leviable on the trailers manufactured by the assessee-firm. We are concerned with the assessment years 1978-79, 1979-80 and 1980-81 and 1981-82. The Appellate Tribunal held that the trailers will be taxed at 15 per cent for the assessment years 1978-79, 1979-80 and 1980-81 up to September 16, 1980. The Tribunal further held that trailers would come within entry 8 of the First Schedule prior to September 15, 1980 and thereafter will be taken into entry 138 of the First Schedule of the Kerala General Sales Tax Act, 1963. In holding so the Sales Tax Appellate Tribunal relied on the Bench decision of this Court in Antony v. State of Kerala [1992] 86 STC 196; (1991) 1 KLT 358 . It is this common order of the Sales Tax Appellate Tribunal dated March 15, 1991, that is under challenge in this batch of revisions. 3. We heard counsel for the revision-petitioner Sri P. Balagangadhara Menon and also counsel for the Revenue, Senior Government Pleader, Mr. V. C. James. It is common ground that the Sales Tax Appellate Tribunal is bound by the order of remit made by this Court in T.R.C. Nos. 57 to 60 of 1985 dated July 3, 1987 between the same parties. In disposing of the batch of revisions we had occasion to advert to a communication of the Board of Revenue dated April 28, 1970 and also a communication of the Government dated August 21, 1984. 57 to 60 of 1985 dated July 3, 1987 between the same parties. In disposing of the batch of revisions we had occasion to advert to a communication of the Board of Revenue dated April 28, 1970 and also a communication of the Government dated August 21, 1984. This Court had also occasion to refer to the decisions of the Supreme Court in Navnit Lal C. Javeri v. K. K. Sen, Appellate Assistant Commissioner of Income-tax [1965] 56 ITR 198 and Ellerman Lines Ltd. v. Commissioner of Income-tax [1971] 82 ITR 913, and in stating that section 3(3) of the Kerala General Sales Tax Act is in pari materia with section 5(8) of the Income-tax Act and so the legal effect of the communication of the Board of Revenue dated April 28, 1970, should be considered in the light of the aforesaid statutory provisions and the decisions of the Supreme Court. In paragraph 5 of the judgment this Court held thus : ".......... We are of the view that the Appellate Tribunal was not justified in explaining away the letter of the Board of Revenue dated April 28, 1970. The Appellate Tribunal did not advert to section 3(3) of the Kerala General Sales Tax Act and the legal effect of the letter of the Board of Revenue dated April 28, 1970. In particular, the scope of section 3(3) of the Act, in the light of the decisions of the Supreme Court brought to our notice, is very relevant. The Appellate Tribunal had a duty to consider the relevant decisions of the Supreme Court which construed section 5(8) of the Income-tax Act, 1922, which is substantially similar to section 3(3) of the kerala General Sales Tax Act. We may also state that if the letter dated April 28, 1970, is one which will come under section 3(3) of the Act its legal effect deserves consideration. That apart, if the Government itself as late as August 21, 1984, held out that trailers attached to the power tillers and tractors would come under general goods till September 16, 1980 and is subject to 4 per cent tax at multi-point, that is not a matter which could easily be brushed aside." We rejected the plea of the Revenue that the letter of the Board of Revenue dated April 28, 1970, is unauthorised or cannot have a legal effect. The judgment concluded thus : "We set aside the common order passed by the Appellate Tribunal dated February 1, 1985. The matter is remitted to the Sales Tax Appellate Tribunal for a proper consideration in accordance with law and in the light of the observations contained herein above." 4. After the remit while passing the common order dated March 15, 1991, the Sales Tax Appellate Tribunal in the beginning sentence referred to the appeals as one coming up after remit by this Court in T.R.C. Nos. 57 to 60 of 1985. After noticing the observations of this Court contained in paragraph 5 of the order in T.R.C. Nos. 57 to 60 of 1985 and the plea based in that behalf, the Appellate Tribunal observed that the decision in T.R.C. Nos. 57 to 60 of 1985 was rendered on July 3, 1987. But subsequently another Division Bench of the Court had held that trailers would come under entry 138 of the First Schedule to the Kerala General Sales Tax Act in the decision reported in Antony's case [1992] 86 STC 196 (Ker); (1991) 1 KLT 358 . After quoting the observations of the later Bench decision, the Tribunal concluded that trailers will be taxed at 15 per cent for the assessment years 1978-79, 1979-80 and 1980-81 up to September 16, 1980. The Tribunal did not discuss or consider or record any finding as directed by this Court in the order of remit. We should say that the Sales Tax Appellate Tribunal totally ignored the order of remit contained in T.R.C. Nos. 57 to 60 of 1985 dated July 3, 1987. Counsel for the Revenue, when faced with this position, did not support the order of the Appellate Tribunal. Since the Sales Tax Appellate Tribunal has failed to consider the appeals before it, T.A. Nos. 1265, 1266, 1267, 1138 and 1139 of 1982, in accordance with law and as ordered by this Court in T.R.C. Nos. 57 to 60 of 1985 in the judgment dated July 3, 1987, we hold that the order of the Appellate Tribunal is erroneous in law. It is infirm. The Appellate Tribunal has not acted in accordance with law and has failed in its duty to comply with the order of remit. 57 to 60 of 1985 in the judgment dated July 3, 1987, we hold that the order of the Appellate Tribunal is erroneous in law. It is infirm. The Appellate Tribunal has not acted in accordance with law and has failed in its duty to comply with the order of remit. We therefore set aside the common order passed by the Appellate Tribunal dated March 15, 1991 and direct the Sales Tax Appellate Tribunal to dispose of the appeals before it in accordance with law and in the light of the observations contained in the judgment dated July 3, 1987. 5. Incidentally we should clear any lurking doubt with regard to the communication of the Board of Revenue and the Government order referred to in the Bench decision in Antony's case [1992] 86 STC 196 (Ker); (1991) 1 KLT 358 . Exhibits P1 and P2 communications of the Board of Revenue and the Government respectively referred to in paragraph 7 of the judgment or their legal effect were not considered in the said judgment. We should also add that exhibit P1 communication of the Board of Revenue referred to therein is one dated December 30, 1967 and exhibit P2 order of Government referred to in the said judgment is one dated January 30, 1968. The order of the Board of Revenue, which is relevant in the instant case, is one dated April 28, 1970 and the order of the Government which is relevant is one dated August 21, 1984. This aspect shall be borne in mind in considering the appeals afresh by the Sales Tax Appellate Tribunal.