High Court Kerala High Court

State Of Kerala vs M/S.Noble Industries on 26 November, 2008

Kerala High Court
State Of Kerala vs M/S.Noble Industries on 26 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 206 of 2007()


1. STATE OF KERALA.
                      ...  Petitioner

                        Vs



1. M/S.NOBLE INDUSTRIES,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.K.P.HAREENDRAN

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER

 Dated :26/11/2008

 O R D E R

H.L. DATTU, C.J. & A.K. BASHEER, J.

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S.T. Rev. No. 206 of 2007

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Dated this the 26th day of November, 2008

Order
H.L. Dattu, C. J:

The Revenue has called in question the legality or

otherwise of the orders passed by the Kerala Sales Tax Appellate

Tribunal, Additional Bench, Kozhikode in T.A.No.417 of 2004 dated

24th April 2006. By the impugned order the Tribunal has confirmed the

orders passed by the Appellate Assistant Commissioner in

STA.No.46/2004 dated 27/5/2004 and has set aside the orders passed

by the Additional Sales Tax Officer-I, Kuthuparamba dated 9/10/2003.

2. The assessee is engaged in the production of granite

metal using mechanized granite crusher. For the assessment year

2001-02, the assessee had applied for permission to pay the tax at the

compounded rate as provided under section 7 of the Kerala General

Sales Tax Act (the Act, for short) with reference to its mechanized

granite crushing unit, of size 16 X 9.

3. Nowhere in the revision petition it is stated by the

Revenue that the permission sought for by the assessee for payment of

tax at the compounded rate as envisaged under Section 7 of the Act

had been accepted by the assessing authority and was informed to the

assessee.

4. For the relevant assessment year 2001-02 up to 23rd July

2001, the rate of tax payable under Section 7 of the Act, if an assessee is

permitted to pay the tax under the compounded rate, was only a sum of

Rs.30,000/-. By Finance Act 2001, the compounding fee was increased

from Rs.30,000/- to Rs.90,000/- with effect from 24/07/2001. Immediately

after introduction of the Bill, the assessee had filed an application before

the assessing authority, inter alia, requesting him to permit the assessee to

withdraw the application filed by it to pay tax at the compounded rate and

had further requested the assessing authority to complete the assessment for

the year 2001-02 by regular assessment under Section 17 of the Act. The

assessing authority has passed an order for the assessment year 2001-02

dated 9/10/2003 directing the assessee to pay tax at the compounded rate

as envisaged in the Finance Act 2001.

5. Aggrieved by the order so passed by the assessing

authority, the assessee had filed an appeal before the first appellate

authority. The first appellate authority has granted relief to the assessee.

6. The State had carried the matter before the Tribunal, being

aggrieved by the orders passed by the first appellate authority. The Tribunal

by its detailed and well considered order, has rejected the Revenue’s appeal

and has confirmed the orders passed by the first appellate authority. It is the

correctness or otherwise of the order passed by the Tribunal is the subject

matter of this revision petition filed by the State under Section 41 of the

Act.

7. The revenue has framed the following questions of law for

our consideration and decision:

“A. Whether the Appellate Tribunal is right in
law in holding that the assessee is not liable to
pay the enhanced compounded rate of tax
introduced in the midst of the assessment year?

B. Whether the Appellate Authority and the
Tribunal are right in law in ordering
completion of regular assessment permitting the
assessee to retract from the compounding
method of assessment voluntarily opted by the
assessee?

             c.   Is not     an assessee bound to pay the
             compounded rate of        tax   with reference to
             the rate prevailing      during the currency of

            the year? Can an assessee claim avoidance of

the enhanced rate stating that he has already
opted for compounding before the introduction
of the enhancement?”

8. From the facts noticed by the first appellate authority

and the Tribunal, one thing that is evident is that the assessee had only

filed his application before the assessing authority for permission to

pay the tax at the compounded rate as envisaged under Section 7 of the

Act. It is not stated anywhere in the orders passed either by the first

appellate authority or the Tribunal or even in the revision petition filed

by the State, that, permission had been granted by the assessing

authority to pay the tax at the compounded rate. Even before the

assessment could be completed, since there was no permission granted

by the assessing authority for payment of the tax at the compounded rate,

the assesee has withdrawn his application filed for payment of tax at the

compounded rate and had requested the assessing authority to complete

the assessment for the assessment year 2001-02 by way of regular

assessment as envisaged under Section 17 of the Act. For the reasons

best known, the assessing authority has rejected the request of

the assessee. The error committed by the assessing authority is now

rectified by the first appellate authority and that order has been confirmed

by the Tribunal.

9. In the instant case, the assessee has not withdrawn his earlier

request for payment of tax at the compounded rate as provided under

Section 7 of the Act. It is no doubt true, that, he had filed an application to

pay the tax at the compounded rate and it appears to us that the said

application was ever considered by the assessing authority and a formal

order as required under the Rules was passed by the assessing authority, and

therefore, the assessee was entitled to withdraw his earlier application, since

no order was passed on the request made by the assessee. Therefore, it is

not a case where the assessing authority has accepted the request of the

assessee for payment of tax at the compounded rate and later it was

withdrawn, but a case where orders were not passed on the application filed

by the assessee for payment of tax at the compounded rate. Therefore, in

the present case, we need not have to decide whether the assessee can

withdraw his application which has already culminated into order, in view

of the orders passed by the assessing authority. This issue, we

will keep it open, to be agitated in an appropriate proceedings. In the

peculiar facts and circumstances of the case, we are of the opinion that

neither the first appellate authority nor the Tribunal has committed any error

which would call for our interference in a petition under Section 41 of the

Act. Therefore while rejecting the revision petition, we answer the question

of law raised by the Revenue against the Revenue and in favour of the

assessee.

Ordered accordingly.

H.L. DATTU
Chief Justice

A.K. BASHEER
Judge

an/dk.