Deputy Commissioner Of … vs Aluminium Industries Ltd., … on 23 July, 1968

Kerala High Court
Deputy Commissioner Of … vs Aluminium Industries Ltd., … on 23 July, 1968
Equivalent citations: AIR 1969 Ker 205, 1969 23 STC 434 Ker
Author: Isaac
Bench: M Isaac, P N Pillai


Isaac, J.

1. These two petitions have been filed by the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon under Section 41 (1) of the Kerala General Sales Tax Act, 1963 to revise the orders of the Sales Tax Appellate Tribunal in T. A. Nos. 408 and 409 of 1966, The Aluminium Industries Ltd. is the respondent in both the cases. In the first case, the respondent was finally assessed for the year 1960-61 under the Central Sales Tax Act, 1956 by the Sales Tax Officer by his order dated 18-10-1962. In the second case, It was finally assessed for the year 1961-62 under; the same Act by the same officer by his order dated 29-10-1962. In both these assessments, the respondent made a claim for deduction of the trade discount paid to its customers from its gross turnover in determining the taxable turnover. This claim was allowed by the Sales Tax Officer. The petitioner took the view that this claim was not admissible under law. Accordingly, he took action under Section 15 (1) of the General Sales Tax Act, 1125 (hereinafter referred to as the 1125 Act), and revised the orders of the Sales Tax Officer, by disallowing the above claim. The orders of the petitioner were passed on 23-6-1966.

2. The period fixed under Section 15 (3) of the 1125 Act for exercising the power of revision is four years from the date on which the order sought to be revised was communicated to the asses-see. The revised orders in these cases have been passed within the above period. Rule 33 (1) of the General Sales Tax Rules 1950 (hereinafter referred to as the Rules) confers the power on an assessing authority to assess escaped turnover. The same power is also conferred by Rule 33 (5) on the appellate authority and the revisional authority. But the period prescribed for exercising the said powers is three years from the end of the year to which the assessment relates. So the order passed by the petitioner is beyond the said period in both cases.

3. The respondent filed appeals before the Appellate Tribunal from the orders of the petitioner; and it raised two contentions. One was that the petitioner was not entitled to take action under Section 15 (1) of the 1125 Act, as these were cases of assessment of escaped turnover, which was barred under Sub-rules (1) and (5) of Rule 33 of the Rules. The second contention was that it was entitled to deduction of trade discount from the gross turnover.

4. There are three decisions of this Court, which apparently support the respondent’s first contention. They are Ramaswamy v. Sales Tax Officer, 1965 Ker LT 254, Sarvothama Srinivasa Shenoy v. Deputy Commissioner of Agricultural Income-tax & Sales-tax, Kozikode, 1965 Ker LT 304 and Ninan v. State of Kerala, 1965 Ker LT 1167. Presumably on the basis of these decisions, the Appellate Tribunal accepted the first contention and allowed the appeals on the ground of limitation. In this view of the matter, the second contention was not considered. The petitioner has, therefore, filed these revision petitions challenging the decision of the Tribunal.

5. The question whether the Deputy Commissioner is entitled to exercise his revisional power in a matter which squarely falls under Section 15 (1) of the 1125 Act, even though it may involve assessment of escaped turnover arose for decision before one of us in O. P. No. 3988 of 1966 (reported in 1968 Ker LR 726) Vazhakkala Rubbers v. Sales Tax Officer. It was held ha that case that the aforesaid three decisions of this Court may not be good law in the light of the recent decision of the Supreme Court in Swastik Oil Mills Ltd. v. H. B. Munshi, (1968) 21 STC 383 = (AIR 1968 SC 843) and that the power of revision conferred by the Statute on the Deputy Commissioner cannot be taken away or controlled by any rule made thereunder. The learned Government Pleader contended that the decision of the Appellate Tribunal was not correct in the light of the above decision of this Court, On the other hand, the respondent’s learned counsel submitted that the said decision was not correct; that it was sought to be appealed from; and that the present cases are governed by the earlier decisions of this Court. As the correctness of the decision in O. P. No. 3988 of 1966 (reported in 1968 Ker LR 726) is likely to be canvassed in appeal before another Bench, and as we can dispose of these cases on the second contention raised by the respondent before the Appellate Tribunal, we do not propose to decide the question regarding the scope of the Deputy Commissioner’s re-visional power.

6. The petitioner held that the respondent was not entitled to deduct trade discount from the gross turnover on the ground that, under the Central Sales Tax Act, 1956, this was not a deductible item. The reasoning for the above finding is as follows:– Section 2 (j) of the Act defines turnover as the aggregate of the sale prices received and receivable by a dealer in respect of sales of any goods in the course of Inter-State trade. Section 2 (h) of the Act defines sale price as the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally followed in the trade. “Cash discount” and ‘trade discount’ are entirely different and distinct things, and hence under the Central Sales Tax Act, cash discount alone is deductible in determining the turnover, and not the trade discount. But the learned counsel for the respondent submitted that the discount for which the respondent claimed deduction would fall under Rule 7 (1) (a) of the Rules; and that, by virtue of Section 9 (3) of the Central Sales Tax Act, 1956, the respondent was entitled to get all allowances provided in Rule 7 of the Rules in determining the turnover under the said Act, Rule 7 (1) (a) reads as follows:–

“7. (1) The tax or taxes under Section 3 or 5 or the notifications under Section 6 shall be levied on the net turnover of a dealer. In determining the net turnover, the amounts specified in Clauses (a) to (k) shall, subject to the conditions specified therein, be deducted from the gross turnover of a dealer:–

(a) all amounts allowed as discount, provided that such discount is allowed in accordance with the regular practice of the dealer or is in accordance with the terms of a contract or agreement entered into in a particular case and provided also that the accounts show that the purchaser had paid only the sum originally charged less the discount.”

There Is no dispute that the trade discount paid by the respondent would not fall under the above rule. In State of Mysore v. Lekshminarasimhiah Setty and Sons, (1965) 16 STC 231 = (AIR 1965 SC 1510) the Supreme Court held that, under the Central Sales Tax Act, tax can be assessed and collected only in the same manner as the tax on the sale or purchase of goods under the General Sales Tax law of the State, which meant that all exemptions, deductions etc. provided under the State law would apply to the assessment of tax under the Central Act, This Court has also taken the same view in Laxmi Starch Factory Ltd, v. State of Kerala, (1965) 16 STC 794 = (AIR 1966 Ker 60). Section 15 of the Central Sales Tax Act was amended by the Central Sales Tax (Second Amendment) Act, 1958; and the said section as amended was brought into force with effect from 1-10-1958. In Khader and Co. v. State of Madras, (1968) 17 STC 396 (Mad) the Madras High Court held that the law laid down in the above decision of the Supreme Court would apply only to assessments in respect of periods prior to the coming into force of the above amendment; that the position would be different in the light of the said amendment and that, in respect of subsequent periods, the tax under the Central Act can be levied, in spite of any exemption provided under the State law. With the greatest respect, we are unable to see the distinction pointed out by the Madras High Court. In our view, the amendment of Section 15 does not affect the meaning of Section 9 of the Central Act as interpreted by the Supreme Court. It is unnecessary to consider this matter in detail, as it is clear from a very recent decision of the Supreme Court dated 18th April 1968 in C. A. No. 763 of 1967: (AIR 1969 SC 147) State of Madras v. N. K. Nataraja Mudaliar that the reasoning of the Madras High Court in its above decision cannot be sustained. We, therefore, hold that all deductions allowed under the State law to be made from the gross turnover in determining the net turnover shall be liable to deduction in determining the taxable turnover under the Central Sales Tax Act, 1956.

7. In the result, these revision petitions are dismissed. There will be no order as to costs.

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