High Court Kerala High Court

State Of Kerala vs Kunhikannan Jewellery on 12 February, 2009

Kerala High Court
State Of Kerala vs Kunhikannan Jewellery on 12 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 164 of 2006()


1. STATE OF KERALA.
                      ...  Petitioner

                        Vs



1. KUNHIKANNAN JEWELLERY,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.T.M.SREEDHARAN

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :12/02/2009

 O R D E R
                 C .N. RAMACHANDRAN NAIR &
                    K. SURENDRA MOHAN, JJ.
                 --------------------------------------------
                 S.T. Rev. No. 164 & 163 OF 2006
                 --------------------------------------------
               Dated this the 12th day of February, 2009
                                                                 C.R.
                              JUDGMENT

Ramachandran Nair,J.

Connected Revision cases are filed by the State against the order

of the Sales Tax Appellate Tribunal holding that respondent has no

liability to pay purchase tax under Section 5A on the turnover of

bullion purchased from non-resident Indians. We have heard

Government Pleader appearing for the petitioner and counsel appearing

for the respondent.

2. Non-residents are granted exemption on sales turnover of

bullion under entry 10 of Schedule II of SRO 1727 of 1993. However,

in order to prove exemption purchaser has to issue declaration in

Annexure I of the said notification. Respondent admittedly has not

issued any declaration in Annexure I in terms of the notification.

However since respondent did not produce any sale bills issued by non-

resident Indians, the assessing officer levied tax under Section 5A

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treating the purchases as made in circumstances in which no tax is

payable by the sellers. The Tribunal however held that since

respondent has not issued any declaration, liability under Section 5A

cannot be fastened on purchaser merely because sellers are not assessed

to tax. Government Pleader submitted that since bullion purchased by

respondent was consumed in the manufacture of ornaments, which

were sold by the respondent, the purchases will attract tax under

Section 5A because purchases were in circumstances in which no tax

is payable by the seller. However, respondent’s counsel contended that

bullion is an item taxable at sale point and the turnover is assesable at

the sale point at the hands of the sellers. According to counsel for the

respondent, respondent has furnished names and addresses of sellers

from whom bullion was purchased.

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

the Tribunal, we do not think the view taken by the Tribunal can be

sustained. Purchase tax is payable under Section 5A if the commodity

purchased is taxable and the purchase is in circumstance in which no

tax is payable by the seller at the point of sale of goods in the State.

This position is made clear by the decision of the Supreme Court in

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STATE OF TAMIL NADU V. M.K. KANDASWAMY, 36 STC 191,

and that of this Court in DEPUTY COMMISSIONER (LAW) V.

ALAPPAT (EXPORTS) P.LTD., (2003) 2 KLT 731.

4. The contention of the Government Pleader that since sellers

are entitled to exemption by virtue of the notification above referred,

liability under Section 5A is automatic on the purchaser because

purchaser is engaged in manufacture of gold ornaments from bullion is

not acceptable as such. Similarly, the contention of the respondent that

since declaration in Annexure I is not issued by them to the sellers,

they cannot be assessed under Section 5A is equally unacceptable. If

any non-resident Indian who has sold bullion to the respondent is

engaged in the business of importing and selling of bullion and if the

turnover of such non-resident Indian exceeds taxable limit, then sales

tax should be assessed and recovered from such non-resident Indian as

bullion is an item taxable at the sale point under Section 5(1) read with

relevant entry of the First Schedule to the KGST Act. If a non-resident

liable to pay tax on sales of bullion wants to claim exemption under the

notification above referred then he ought to have obtained declaration

from the respondent in Annexure I and claimed exemption. However,

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if the non-resident who made sales to the respondent escaped liability

on account of lapses on the part of the department, the same will not

justify assessment of turnover under Section 5A on the respondent. It

is for the respondent to produce sale bills or purchase vouchers to

prove that non-resident seller was engaged in the “business” of

importing and selling of bullion and his turnover was above the limit

that attracts liability under Section 5(1) for the purpose of escaping

liability under Section 5A of the Act. In the normal course a non-

resident Indian occasionally visits his home and he cannot be expected

to be doing business in the import and sale of bullion. However, if any

such non-resident Indian who sold bullion to the respondent was

engaged in the business attracting liability then the turnover

representing purchases from such non-resident cannot be assessed at

the hands of the purchaser. The respondent has no case that sellers

have charged sales tax from them which obviously means that sellers

claim exemption on such sales. Since the item purchased is admittedly

consumed in the manufacture of gold ornaments, respondent will be

liable to pay tax under Section 5A if the purchase is in circumstances in

which no tax is payable by the seller which is either by virtue of

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exemption available under notification SRO 1727/93 or on account of

the fact that seller is not a dealer engaged in the business of sale of

bullion. The Tribunal’s order cannot be sustained because the Tribunal

declared exemption in favour of the respondent merely because they

have not issued declaration in Annexure I. We have already held that

even if declaration prescribed under the notification is not issued, a

non-resident seller cannot be assessed unless it is proved that such non-

resident who made sales to the respondent is engaged in the business

which is to be proved with reference to periodicity, frequency and

volume of sales.

We therefore allow the Tax Revision Cases by setting aside the

order of the Tribunal and remand the matter to the assessing officer for

giving opportunity to the respondent to produce purchase vouchers or

sale bills pertaining to purchase of bullion from non-residents

containing the names and addresses and proof of sellers identity for the

assessing officer to conduct enquiry and to exclude so much of the

purchases from non-residents who were liable to pay tax under Section

5(1) of the Act. We make it clear that merely because sellers who are

liable under Section 5(1) are not assessed or cannot be assessed on

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account of limitation is not a ground for fastening liability on the

respondent under Section 5A. Respondent is given two months’ time

from the date of receipt of a copy of this judgment for furnishing

particulars, and records before the assessing officer. However, if no

proof is produced within the period granted above, towards proof of

purchase with names and addresses of the non-residents then the

assessment made under Section 5A will stand confirmed.

(C.N.RAMACHANDRAN NAIR)
Judge.

(K. SURENDRA MOHAN)
Judge.

kk

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