LIANG HAUT ALUMINIUM LTDR v. DY COMMISSIONER OF COMMERCIAL TAXES
2003-05-29
R.GURURAJAN
body2003
DigiLaw.ai
( 1 ) AN interesting question with regard to interpretation to be placed on Section 17 (6) of the Sales Tax Act in the light of the notification u/s. 8a is raised in the case on hand. The petitioner made an application in Form 8aa in terms of Rule 8b of the Karnataka Sales Tax Rules (for short the Rule) to take the benefit of an assessment u/s. 17 (6) Returns were submitted and details were furnished to the first respondent The first respondent proposed action to complete the assessment of the petitioner for a normal assessment without reference to composition application. The 2nd respondent issued a notification dated 19. 12. 1996 thereby total exemption was extended on the turnover involved in the execution of works contract relating to Information Technology Park Limited. ( 2 ) A Writ Petition was filed by the petitioner on an earlier occasion. In the light of the order of this Court in the Writ Petition, the first respondent issued proposition notice in Form 31a proposing the composition tax at 4 % on the consideration received on the execution of works contract from 1 4. 1996 to 18 12. 1996. The respondent proceeded to assess the turnover from 19. 12 1996 to 31. 3. 1997 u/s 12 (3) extending exemption from tax u/s 5b in terms of the notification. The proposed turnover tax u/ s. 6b on that turnover from 19. 12. 1996 to 31. 3. 1997 is at Annexure B. The petitioner submitted his reply on 17 5 2000 Thereafter, an order was passed in terms of Annexure D followed by a demand in terms of Annexure E ( 3 ) AGGRIEVED by the action of the respondents, the petitioner is before me. Respondents have entered appearance. ( 4 ) SRI. Narayana, learned Counsel appearing for the petitioner took me through the scheme of the Act and also the Judgment of Tata Honeywell Ltd. , to contend that the respondents are wrong in bifurcating the yearly composition order in the case on hand. According to him it is impermissible in law. ( 5 ) PER contra, Sri. Anand, learned Government Advocate says that Sec. 17 (6) has to be read in the light of the Judgment of this Court in Hubli Opticals Vs. Assistant Commissioner of Commercial Taxes (100 STC 405 ).
According to him it is impermissible in law. ( 5 ) PER contra, Sri. Anand, learned Government Advocate says that Sec. 17 (6) has to be read in the light of the Judgment of this Court in Hubli Opticals Vs. Assistant Commissioner of Commercial Taxes (100 STC 405 ). Learned GP says that the tax referable would not include the tax u/s. 6b of the Act He supports the Governmental action. ( 6 ) AFTER hearing, I have carefully perused the material on record. ( 7 ) SEC 17 (6) provides for composition in the matter of payment of tax. The said Section reads as under: (i) Notwithstanding anything contained in Section 5-B, but subject to such conditions and in such circumstances as may be prescribed, the Assessing Authority of the area may, if a dealer liable to tax u/s. 5-B so elects, accept in lieu of the amount of tax payable by him during the year under this Act, by way of composition an amount on the total consideration for the works contracts executed by him in that year in the State in respect of works contract specified in Column (2) of the Sixth Schedule. (ii) Any dealer may apply to the assessing authority to be permitted to pay the amount under clause (i) and, on being so permitted, he shall pay tax in advance as provided for u/s. 12-B and all the provisions of Section 12-B mutatis mutandis shall apply to this sub-section; (iii) the amount paid under clause (ii), shall be subject to such adjustment as may be necessary on completion of final assessment. ( 8 ) RULES have been framed in this regard in terms of Sec 8b of the Rules. It is admitted before me that the petitioner did make an application for composition and the same was accepted by the Department. They want to levy tax u/s. 6b in the light of a notification dated 19. 12 1996. This Court in the case of Tata Honeywell Ltd. , vs. Deputy Commissioner of Commercial Taxes has considered identical facts as in the said case. This Court, after noticing the provisions of Sec. 17 (6), 6b, 5b and 8a ruled in para 3 reading as under: the power to exempt u/s. 8-A of the Act which is exercised by the State Government is to take out the assessee from the charging section.
This Court, after noticing the provisions of Sec. 17 (6), 6b, 5b and 8a ruled in para 3 reading as under: the power to exempt u/s. 8-A of the Act which is exercised by the State Government is to take out the assessee from the charging section. The charge that is created comes to an end the moment exemption is granted. A contention is raised by the learned Counsel for the respondent that the composition u/s. 17 (6) is for the year and therefore, grant of exemption during the year would still make an assessee liable to pay the tax, in terms of Section 17 (6) of the Act. This contention cannot be considered to be proper. It is true that the composition is granted on yearly basis, as the unit of assessment is also for an year, the charge is created annually, but if the charging section itself is not in force during part of that year, the liability ceases from the date the exemption is granted. In view of this interpretation, the assessment order dated April 22, 1997 is quashed. The assessing authority will proceed to frame the assessment de novo in the light of the observation made above. ( 9 ) THIS Court categorically ruled that the charge that is created comes to an end, the moment exemption is granted. This Court has further ruled that the unit of assessment is also for an year, the charge is created annually and therefore, the liability ceases from the date of exemption in terms of the Act. The said case is applicable to the facts of this case. Admittedly, the exemption has been granted for the entire year in terms of the Act. It is not open for the respondent now to bifurcate and demand tax u/s. 6b in the light of the notification dated 19. 12. 1996. The said action on the part of the respondent is impermissible in law. ( 10 ) SRI. Narayan, learned Counsel is right in his submission that the action of the respondent in demanding tax u/s. 17 (6) requires my interference. I must also consider the submission of the learned Government Advocate with regard to the applicability of the Hubli Opticals case in (1996) 100 STC 405 The facts of the case, if read would show that the intention was to exempt only the tax and not the turnover tax.
I must also consider the submission of the learned Government Advocate with regard to the applicability of the Hubli Opticals case in (1996) 100 STC 405 The facts of the case, if read would show that the intention was to exempt only the tax and not the turnover tax. That was a case in which the exemption notice specifically read as tax payable u/s. 5 of the Act. In the light of the specific wordings in that case, this Court ruled that the inclusion of Sec. 6b is not permissible on the facts of that case. The said Judgment is clearly distinguishable on facts. In the case on hand, a statute has to be given its full meaning and it cannot be read to the detriment of an assessee. ( 11 ) IN these circumstances, I reject the arguments of the Government. Writ Petition is allowed. The impugned assessment order is set aside. Consequently, the demand notice also is set aside. Ordered accordingly. No costs.