Bhima Jewellery vs Assistant Commissioner (Assessment)

1 This appeal is directed against the judgment and order passed by the High Court of Judicature of Kerala at Ernakulam in W.A. No. 1141 of 2002, dated November 27, 2003 Reported as Bhima Jewellery Vs. Assistant Commissioner, . By the impugned judgment and order, the Division Bench of the High Court has confirmed the judgment and orders passed by the single judge Reported as Bhima Jewellery Vs. Assistant Commissioner (Assessment) and Another, and has come to the conclusion that the assessing authority was justified in imposing additional tax u/s 5D of the Kerala General Sales Tax Act, 1963 (for short, "the K.G.S.T. Act"). The facts in brief are as under: The Appellant is a dealer in gold and silver ornaments. It is registered both under the K.G.S.T. Act and the Central Sales Tax Act, 1956. The Appellant had opted to pay tax at the compounded rate as provided u/s 7 of the K.G.S.T. Act and the request of the Appellant was accepted by the Department. The Appellant continued to pay tax at the compounded rate for the assessment year 2001-02.

On July 23, 2001, the Legislature had brought in an amendment to the K.G.S.T. Act by inserting Section 5D to the K.G.S.T. Act levying additional tax on those dealers who are taxable u/s 5 and 5A of the K.G.S.T. Act. The Appellant in accordance with this provision deposited additional tax for the months of July and August 2001. Being aggrieved by the demand of additional tax u/s 5D of the K.G.S.T. Act for the aforesaid months and also for subsequent months, the Appellant has approached the writ court.

The learned single judge Reported as Bhima Jewellery Vs. Assistant Commissioner (Assessment) and Another, of the High Court after a careful consideration, has come to the conclusion that when a dealer exercises his option to pay tax at the compounded rate u/s 7 of the K.G.S.T. Act, it pays the tax payable u/s 5(1) of the K.G.S.T. Act and therefore the Appellant is liable to pay the additional tax u/s 5D of the K.G.S.T. Act. The Division Bench Reported as Bhima Jewellery Vs. Assistant Commissioner, of the High Court has confirmed the orders passed by the learned single judge Reported as Bhima Jewellery Vs. Assistant Commissioner (Assessment) and Another, It is the correctness or otherwise of the said order, which is called in question' by the Appellant before this Court.

We have heard the learned Counsel for the parties to the lis.

In order to appreciate the stand of the learned Counsel for the parties, it is useful to refer to Section 7 of the K.G.S.T. Act, for relevant assessment year:

Payment of tax at compounded rates.--(1) Notwithstanding anything contained in Sub-section (1) of Section 5,--

(a) Any dealer in gold or silver ornaments or wares, may, at his option instead of paying tax in accordance with the provisions of that Sub-section, pay tax at one hundred and thirty percent of the tax payable by him as conceded in the return or accounts or the tax paid for the previous consecutive three years whichever is higher.

The section begins with the phrase "notwithstanding anything contained in Sub-section (1) of Section 5". The purpose is to give the provision contained in the non obstinate clause an overriding effect to the provision of Sub-section (1) of Section 5 of the K.G.S.T. Act. The said section speaks of levy of tax on sale or purchase of goods on the taxable turnover. The heading of Section 7 of the K.G.S.T. Act speaks of "payment of tax" at the compounded rate in lieu of tax payable u/s 5 or 5A of the K.G.S.T. Act. 8 Now we refer to Section 5D of the K.G.S.T. Act which is inserted with effect from July 23, 2001. It is as under:

5D. Levy of additional sales tax.--The tax payable u/s 5 and Section 5A shall be increased by an additional sales tax at the rate of fifteen percent of the tax payable under the said sections:

Provided that no additional sales tax under this section shall be levied--

(a) On the tax payable on high speed diesel oil, petrol and liquefied petroleum gas falling under sub-items (i), (v) and (viii) respectively of serial number 108 and foreign liquor falling under serial number 60 of the First Schedule.

(b) On any goods falling under the Second Schedule in such a way that the tax leviable u/s 5 and Section 5A and that leviable under this section together exceed four percent:

Provided further that the levy of additional tax payable under this section shall only be for the period up to 31st March 2002.

Section 5 of the K.G.S.T. Act talks of levy of tax on sale of goods. Section 5A of the K.G.S.T. Act speaks of levy of purchase tax on purchase of goods. They are charging provisions under the K.G.S.T. Act.

Section 7 of the K.G.S.T. Act provides for payment of tax at compounded rates. The Appellant opted for payment of tax at the compounded rates on the sale of gold and silver ornaments for the aforesaid assessment year.

Section 5D, which we have extracted earlier provides that additional tax can be levied and collected by the Revenue from a dealer who is liable to pay tax Under Sections 5 and 5A of the K.G.S.T. Act at a particular rate. In the instant case, the dealer is not being taxed u/s 5 or Section 5A of the K.G.S.T. Act but is paying tax at the compounded rate as envisaged in Section 7 of the K.G.S.T. Act and therefore will not be liable to pay additional tax under the amended provision of the K.G.S.T. Act. The aforesaid proposition is in agreement with several decision of this Court, where the court has reached the conclusion that the option of composition of tax is like a bilateral agreement between the parties with an object to dispense with the rigors of regular assessment. The dealer is given the choice to opt for compounded payment of tax and once the option is exercised and the same is accepted by the concerned authority, it is no longer open to the dealer to request for a regular assessment as envisaged u/s 5 or 5A of the K.G.S.T. Act. Therefore, by no stretch of imagination, can it be said that when a dealer is assessed under compounding scheme, one is also being assessed under the regular procedure of assessment, namely, Section 5 or 5A of the K.G.S.T. Act to have been made liable to pay additional tax as per Section 5P of the K.G.S.T. Act.

In view of the above, the High Court is not justified in confirming the demand notice issued by the assessing authority for payment of additional tax on the Appellant who had already opted for paying tax at the compounded rates u/s 7 of the K.G.S.T. Act.

In the result we allow this appeal and set aside the impugned judgment and order passed by the High Court. We direct the assessing authority to refund the additional tax paid by the Appellant for the month of July and August, 2001 within two months' time from today. If such a payment is not made, the Respondent shall pay interest on the amount that would be refunded at the rate of nine percent per annum. Ordered accordingly.