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2009 DIGILAW 184 (KER)

STATE OF KERALA v. HYMA JEWELLERS

2009-02-24

C.N.RAMACHANDRAN NAIR, K.SURENDRA MOHAN

body2009
JUDGMENT C. N. Ramachandran Nair, J. – Heard Sri V. K. Shamsudeen, learned Government Pleader and senior counsel, Sri K. B. Muhammed Kutty for the respondent. The common question arises in all the cases is whether the assessee is liable to pay tax under compounded rate under section 7(1) by reckoning liability under section 5A. Learned Government Pleader rightly pointed out that the decision of this court relied on by the Tribunal is not applicable to this case. Notification referred to therein is not on compounding but a separate exemption granted to dealers paying tax at compounded rate for the purpose of purchase turnover. In other words, the scope of exemption under the notification is such that dealer paying tax at compounded rate need not pay tax separately under section 5A. It is seen that the Explanation was introduced to section 7(1)(a) by the Finance Act, 1997 with effect from April 1, 1997 by which liability for payment of tax at compounded rate under section 7(1)(a) is fixed by including tax payable for the preceding years under section 5A also. Even after noting the amendment, the Tribunal allowed the assessee's claim for exemption of purchase tax liability for the later years 1999-2000 and 2000-01. We find that this issue was decided in favour of the Revenue by a decision of this court in Prakash Jewellery v. State of Kerala [2004] 12 KTR 543 which stands confirmed by judgment in S.T. Rev. No. 39 of 2006. However, we do not think that there is any need to go into the question raised by the Government Pleader that even prior to the introduction of the Explanation, tax payable at compounded rate should be fixed by reckoning the tax liability under section 5A also. We therefore dismiss the revision pertaining to the assessment year 1998-99 but allow the tax revision cases filed for the years 1999-2000 and 2000-01 by reversing the order of the Tribunal with a direction to the assessing officer to re-fix liability under section 7(1)(a) by reckoning the liability under section 5A for the preceding years. However, we make it clear that no interest should be charged for the excess demand of tax under compounded scheme for any period until revision of assessment pursuant to the judgment.