High Court Kerala High Court

M/S.Ici India Ltd vs State Of Kerala on 30 November, 2010

Kerala High Court
M/S.Ici India Ltd vs State Of Kerala on 30 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 115 of 2010()


1. M/S.ICI INDIA LTD,KALOOR,CHAMMINI ROAD,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.S.SANTHOSH KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY

 Dated :30/11/2010

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                       BHABANI PRASAD RAY, JJ.
               ....................................................................
                           S.T. Rev. No.115 of 2010
               ....................................................................
              Dated this the 30th day of November, 2010.

                                      JUDGMENT

Ramachandran Nair, J.

The question raised is whether the Tribunal was justified in

confirming the assessment and demand of tax on the turnover of paint

mixing machines. We have heard counsel appearing for the petitioner

and Sri.Vinod Chandran, Special Government Pleader appearing for

the respondent.

2. The case of the petitioner is that the machines were given free

of cost to the dealers who are engaged in sale of petitioner’s products

namely, paint. Special Government Pleader by referring to documents

available in the assessment records submitted that petitioner has even

raised bills on dealers collecting the price for the machines. Further, in

the 50B certificate of account furnished petitioner has claimed

exemption of Rs.11 lakhs and odd towards value of machines supplied.

Counsel for the petitioner submitted that machines are supplied free of

cost to dealers under the agreement and ownership is retained by the

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Company.

3. After hearing both sides and after going through the orders of

the lower authorities, we feel the matter requires reconsideration with

reference to records, agreements and the records of the dealers which

the department is free to call for and verify. The mere fact that

petitioner has issued F Form for interstate stock transfer declaring the

purpose as “for resale” does not mean that tax could be levied if

machines are supplied by the Company to dealers by retaining

ownership with the Company. If Company retains ownership, then it

may be replacing machines or repairing it as and when the machine

becomes old or damaged. In the circumstances, we feel a detailed

enquiry is called for by verifying accounts of the petitioner and the

dealers, and by verifying the agreements. If there is misuse of F Form,

recourse open to the officer is not assessment or levy of tax. We,

therefore, dispose of the revision by remanding the matter to the

Assessing Officer after vacating the findings of the Tribunal and that of

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the first appellate authority for fresh consideration after giving

opportunity to the assessee.

C.N.RAMACHANDRAN NAIR
Judge

BHABANI PRASAD RAY
Judge
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