JUDGMENT
V.V. Kamat, J.
1. The demand notice (exhibit P2) on the ground that it is not maintainable in any way is the subject-matter of this petition under Article 226 of the Constitution of India. By the impugned demand notice purchase turnover tax on the turnover amounting to Rs. 52,73,385 at the rate of 1/2 per cent on the hill produce–cardamom–of the petitioner calculated at Rs. 26,367 is demanded only on provisional basis as stated in exhibit P2.
2. Admitted and accepted facts, more so in the absence of any kind of return for a period of six years from 1991 down to this date, during the pendency of this petition, would show that the petitioner is a dealer in cardamom being assessee on the files of the Agricultural Income-tax and Sales Tax Officer, Vandiperiyar at Kumily (R1). Cardamom is a commodity liable to be taxed only at the point of first sale under entry 30 of the First Schedule to the Kerala General Sales Tax Act, 1963. For the assessment year 1990-91 the petitioner effected taxable sale through auction centres and the auction centres collected tax for the year in question on a turnover amounting to Rs. 52,55,004 and remitted the same already. It is on the basis thereof the petitioner already obtained declaration of such remittances (copy at exhibit P1 is produced in regard to the record) to show that on the basis thereof the petitioner in his return dated April 29, 1991 (exhibit P1) specified the same. Accordingly there is no dispute that the auction centres paid the sales tax and accordingly no sales tax was demanded. This is supported by the order dated May 7, 1991 (exhibit P2) specifying turnover tax liability as “nil” as far as the petitioner is concerned, although it is ascertained at 1/2 per cent and calculated at Rs. 26,367.
3. The factual matrix would show, especially referring to Section 5(2A) of the Kerala General Sales Tax Act, 1963, that no turnover tax would become payable. In the petition the text of the above statutory provision is referred to and reference to the proviso thereto would clear the position which is to the effect that the turnover tax is attracted only in the case of second sellers whose sales are exempt from tax under the single point scheme of levy. Obviously therefore the petitioner being the first seller, the tax having been paid by his agents having been already given credit in regard thereto, there would be no question of liability for turnover tax which is sought to be demanded.
4. It is urged therefore that the said demand notice is bad in law and the respondent No. 1 would have to be understood to be in legal error in issuing the said demand notice.
5. The materials on record, especially exhibits P1 and P2, make it clear that the sales tax have been paid by the petitioner through the auction centres. This is not a situation of second sales and therefore no liability of purchase turnover tax would be ever contemplated. This is also so recorded which would be clear on perusal of exhibit P2 referred to above.
6. The learned Government Pleader, although in difficulties with regard to the position, made a slender attempt to refer to the contents of exhibit P1 referring to the contents of the return by the petitioner, especially with reference to item No. 2 referring to the second sales amounting to Rs. 19,380 which could be considered as the basis of liability. It is obvious that the demand is for turnover tax with reference to the amount of Rs. 52,73,385 at half-a-per cent calculated to be at Rs. 26,367 which is the basis of the demand. It is already observed that this demand is unsustainable in law. A closer look at the contents of exhibit P1 brought to my notice by the learned Government Pleader would show that the petitioner in the return has shown both these amounts as particulars of the total turnovers making a total of Rs. 52,73,385 (as rounded off) which is the basis of the demand notice in regard to which the situation is already clarified that turnover tax dues are shown to have been “nil” though calculated at Rs. 26,367 on the basis of the total taxable turnover being Rs. 52,73,385, obviously including the above figure urged by the learned Government Pleader.
7. Be that as it may, when there is no liability by reason of the fact that the petitioner is not the second seller, the question does not arise for consideration any more,
For all the above reasons the petition succeeds and the proceedings of demand notice (exhibit P2) and its annexure get quashed and set aside.
Order on C.M.P. No. 14058 of 1991 in O.P. No. 8229 of 1991-D dismissed.