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2003 DIGILAW 578 (KER)

VIJAYA TRADES v. STATE OF KERALA

2003-09-02

G.SIVARAJAN, KURIAN JOSEPH

body2003
JUDGMENT The learned Government pleader took notice on behalf of the respondent. The assessee is the revision-petitioner. It is a partnership concern engaged in the business of hill produce, such as pepper, dried ginger, arecanut, turmeric, etc., in Jew Town, Mattancherry. It is a registered dealer under the Kerala General Sales Tax Act, 1963 and the Central Sales Tax Act, 1956. The assessee is dealing in its own goods as well as the goods belonging to their principals on commission basis. In the assessment for the year 1991-92, the assessee took a contention before the assessing authority that it is not liable to pay the turnover tax under section 5(2A) of the Act on the turnover of commission sales. This was not accepted by the assessing authority. The assessment was confirmed both by the first Appellate Authority and by the Tribunal. We find that the Tribunal has considered the question as to whether the petitioner is liable to turnover tax on the total turnover including the turnover of goods taxable at the point of last purchase sold by the petitioner on commission basis on behalf of its principals. The Tribunal noted that the Full Bench of the Tribunal in Brothers Trading Co. v. State of Kerala (T.A. Nos. 1058 of 1999 to 1063 of 1999) by a common order dated March 16, 2001 held that the total turnover for the purpose of levy of turnover tax would include the purchase value of goods taxable at the point of last purchase sold by the assessee on commission basis on behalf of its principal. The Tribunal noted that this order of the Full Bench of the Tribunal was affirmed by this Court also. Mr. A. Kumar, learned counsel appearing for the petitioner, relying upon Notification S.R.O. No. 717/88 with regard to four specified items, namely garbled pepper, ungarbled pepper, arecanut and dried ginger, submitted that having regard to the terms of the notification, the liability is only on the registered dealer for whom the petitioner had acted as commission agents. He also submits that the division Bench, in the decision relied on by the Tribunal, has not considered the impact of this notification though there is a reference to the said notification in the judgment. He also submits that the division Bench, in the decision relied on by the Tribunal, has not considered the impact of this notification though there is a reference to the said notification in the judgment. The learned Government pleader appearing for the respondent, submits that the Notification S.R.O. No. 717/88 was superseded by Notification S.R.O. No 1008/91 dated August 1, 1991 and hence the assessee is liable to pay turnover tax at all points of purchases in the State. Of course, the latter Notification has application only for the period from August 1, 1991 and for the period prior to that, the Notification S.R.O. No. 717/88 will apply. In the instant case, we do not think it necessary to consider all these contentions, for, a division Bench of this Court by judgment dated September 17, 2001 in T.R.C. No. 401 of 2001 (Since reported in [2004] 138 STC 351 (Ker) (Brothers Trading Company v. State of Kerala)) and connected cases considered the question with reference to the Notification also and has come to the conclusion that the commission agents also are liable to turnover tax on the goods sold on behalf of the principals, who are registered dealers. Another division Bench of this Court, to which one of us, G. Sivarajan, J., was a party, in the judgment dated June 13, 2003 in T.R. C. No. 23 of 2002 and connected cases had also followed the above judgment. In these circumstances, we do not find any merit in the S.T. Rev. case. It is accordingly dismissed. Petition dismissed.