Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1413 (KER)

Ramco Cements Limited v. State of Kerala

2017-11-15

DEVAN RAMACHANDRAN, THOTTATHIL B.RADHAKRISHNAN

body2017
ORDER T.B. Radhakrishnan, J. 1. Heard the learned Senior Counsel for the revision petitioner and the learned Senior Government Pleader for the Department of Commercial Taxes. 2. This revision arises from the proceedings under the Kerala General Sales Tax Act, 1963, 'the KGST Act', for short. 3. The revision petitioner, a dealer in cement, was required to pay additional sales tax at the rate of 15% in terms of the provisions of Section 5D of the KGST Act. Such additional sales tax was payable on the tax payable under Section 5 of that Act. By a provision to Section 5D, it was clarified that levy of additional tax payable under Section 5D would be only for the period up to 31/03/2003. As per that provision, the petitioner was not obliged to pay additional tax under Section 5D for the period after 31/03/2013. However, the petitioner collected sales tax from its customers for the period from 01/04/2013 to 18/05/2013, totaling to an amount of Rs. 63,55,406/-. Thereafter, when the petitioner noting the provision in Section 5D, which made it clear that levy of additional sales tax was only up to 31/03/2013 and realising the mistake in that regard and apprehending penalty proceedings, took steps to refund the amount collected from the customers by issuing credit notes. The revision petitioner also filed returns for the months of April and May 2003 showing the details of tax so collected and the refund effected. In the meanwhile, levy of additional sales tax was reintroduced with effect from 01/07/2003 by the Kerala General Sales Tax (Third Amendment) Act, 2003. 4. The revision petitioner came to this Court challenging the said provision brought in by way of an amendment and instituted WP (C) No. 26620/2003. That challenge to the statutory amendment to the KGST Act was repelled through Annexure-A judgment and the revision petitioner was relegated to the statutory appellate remedy in relation to the assessment proceedings, since that process could involve quantification and assessment of details and data. 5. Ultimately, we see that the Appellate Tribunal has decided the issue without addressing itself on the question as to the quantum, if any, of the tax, which was collected by the assessee as additional sales tax and retained by it. 5. Ultimately, we see that the Appellate Tribunal has decided the issue without addressing itself on the question as to the quantum, if any, of the tax, which was collected by the assessee as additional sales tax and retained by it. There was no consideration of the assessee's plea that through credit notes such amounts were returned to the customers from whom such additional sales tax was collected and the credit notes have been accounted for in the books of account. That being so, this is a case where the Appellate Tribunal has to reconsider the case of the revision petitioner/assessee in the light of what is stated above. To pave way for that, the impugned order of the Appellate Tribunal is to be set aside. In the result, this revision is allowed setting aside the impugned order and remitting the matter for de novo consideration by the Appellate Tribunal in the light of what is stated above. The assessee and the department are directed to mark their appearance before the Tribunal on 08/12/2016. The Tribunal will make every effort to finally dispose of the matter within an outer limit of five months from the date of receipt of a copy of this order. The assessments which form the foundation of what is being remitted hereby will continue to remain stayed until a decision is taken by the Tribunal finally.