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2004 DIGILAW 193 (KAR)

BUSINESS PROCESS OUTSOURCING (INDIA) PRIVATE LIMITED v. THE AUTHORITY FOR CLARIFICATION AND ADVANCE RULINGS, BY ITS SECRETARY

2004-03-10

H.BILLAPPA, R.V.RAVEENDRAN

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R. V. RAVEENDRAN, J. ( 1 ) THE appellant filed an application before respondent, that is the Authority for Clarification and advance Ruling, constituted under Section 4 of the Karnataka Sales Tax Act, 1957 ('kst Act' for short) seeking advance ruling on the following: "whether concessional tax rate of 4% against 'c' form can be availed under Section 8 (1) read with Section 8 (3) (b) of the Central Sales Tax Act, 1956 or NIL tax rate in case of "sale IN transit" as the case may be for the interstate purchase of Plant and Machinery',. e', Air conditioners, Workstations with seating, computers, printers, computer peripherals, scanners by a company engaged in the business of process and delivery of various business processes of client organisations. ( 2 ) THE said Authority considered the application passed an order dated 7-7-2003 under Section 4 of the KST Act holding that the appellant cannot effect purchases on the strength of 'c' forms, as appellant is not engaged in sale of goods but is engaged in providing services. That order is challenged in this appeal under Section 24 (1) of the KST Act. ( 3 ) THE respondent has filed a statement submitting that on examination of the matter, it is found that it did not have any jurisdiction to give an advance ruling on the question. The appeal therefore gives rise to the following important and substantial question of law: "whether the Authority for clarification and Advance Ruling, constituted under Section 4 of the karnataka Sales Tax Act, 1957, has jurisdiction to give clarification/advance Ruling in regard to matters arising under Central Sales Tax Act, 1956. " ( 4 ) SECTION 4 of the KST Act makes a provision for issue of clarifications and advance rulings. Sub-section (1) of Section 4 of the KST Act which is relevant is extracted below: "the Commissioner may constitute a State level Authority for Clarification and Advance rulings. consisting of three Additional Commissioners to clarify the rate of tax applicable under this Act in respect of any goods liable to tax under the Act or the exigibility of any transaction to tax under the Act on an application by a dealer registered under the Act. consisting of three Additional Commissioners to clarify the rate of tax applicable under this Act in respect of any goods liable to tax under the Act or the exigibility of any transaction to tax under the Act on an application by a dealer registered under the Act. " it is clear from the said section that the Authority constituted under Section 4 of the KST Act can clarify the rate of tax applicable under the KST Act in respect of any goods liable to tax under the KST Act or the exigibility of any transaction to tax under the KST Act, on an application by a dealer registered under the KST Act. The Authority (respondent) is not empowered or authorised to give any clarification or advance ruling in regard to rate of tax or exigibility to tax under the Central Sales Tax Act, 1956. This has been lost sight of by the authority in issuing the impugned order. ( 5 ) LEARNED Counsel for the appellant submitted that Section 9 (2) of the Central Sales Tax Act provides that all authorities under the KST Act will be entitled to act as corresponding authorities under the Central Sales Tax Act and therefore the Respondent Authority can give clarifications advance rulings relating to matters arising under the Central Sales Tax Act. But a careful reading of Section 9 (2) makes it clear that the authority under Section 4 of the KST Act cannot be treated as the authority for giving advance rulings under the Central Sales tax Act. Section 9 (2) provides that the Authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the General Sales Tax Law of the appropriate state shall on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any interest or penalty payable by a dealer under the Central Sales Tax Act, as if the tax or interest or penalty payable by such dealer under the CST Act is a tax or interest or penalty payable under the general sales tax law of the State. Firstly the Authority constituted under section 4 of the KST Act is not empowered to assess, reassess, collect and enforce payment of any tax under the KST Act. Firstly the Authority constituted under section 4 of the KST Act is not empowered to assess, reassess, collect and enforce payment of any tax under the KST Act. Secondly giving advance rulings and clarifications is not one of the functions mentioned in Section 9 (2) of the CST Act. Therefore Section 9 (2) of CST Act does not empower the Respondent Authority constituted under Section 4 of the KST Act to give advance rulings/clarifications under the CST Act. ( 6 ) AS we find that the order passed by the respondent Authority is one without jurisdiction, it cannot be sustained. Hence, the appeal is allowed in part and the order dated 7-7-2003 passed by the Authority is set aside. Let a copy of this order be sent to the Respondent Authority to ensure that it does not entertain applications relating to CST Act.