Sannidhan Bar And Restaurant vs State of Kerala

C.N. Ramachandran Nair, J.—question raised in the S. T. Revision filed by the petitioner is whether the Tribunal was justified in sustaining a rectification order issued by the assessing officer u/s 43 of the Kerala General Sales Tax Act whereunder original assessment on the turnover tax liability of the petitioner u/s 7 of the Act was modified to cover entire purchase value of liquor sold during the relevant assessment year. We have heard counsel appearing for the revision petitioner and Government Pleader for the respondent.

The petitioner was running a bar hotel during the assessment year 2005-06. Admittedly the petitioner was liable to pay turnover tax on the sales turnover of liquor u/s 5(2) of the Act. However, by virtue of section 7 introduced by the Kerala Sales Tax (Amendment) Act, 2005, the petitioner instead of paying turnover tax on the sales turnover u/s 5(2) could settle liability at the compounded rate as provided u/s 7 introduced by the above Act, which is 140 per cent of the purchase turnover of liquor. Section 7, interpretation of which being the issue raised in the revision petition, is extracted hereunder for easy reference :

Payment of tax at compounded rates.--Notwithstanding anything contained in sub-section (2) of section 5, any bar attached hotel, not being a star hotel and above three star hotel, heritage hotel or club, may, at its option, instead of paying turnover tax on liquor in accordance with the provisions of the said sub-section, pay turnover tax at the rate specified under the said sub-section on the turnover of foreign liquor calculated at the following percentage of the purchase price of such liquor, namely :--

(a)

in the case of those situated within the area of a municipal corporation or municipal council or a cantonment

One hundred and forty per cent

(b)

in the case of those situated in any other place

One hundred and thirty per cent.

While completing the assessment the petitioner offered to remit tax at 140 per cent of the purchase price of the liquor made during the relevant assessment year 2005-06. Even though the assessing officer originally accepted the return and made assessment, he later noticed the mistake crept in the assessment because the purchase price conceded by the petitioner did not include opening stock, which was also sold in the assessment year in question. It is the admitted position that the assessee has excluded closing stock of the year for the purpose of payment of turnover tax at compounded rate u/s 7 of the Act. The assessing officer rectified the assessment by invoking the powers u/s 43 by taking into account the actual purchase turnover of liquor sold in the relevant year which includes opening stock but by excluding closing stock. Rectified order was contested before the lower authorities by the petitioner contending that rectification carried out u/s 43 is without jurisdiction and even if rectification is possible, the assessment on the merits by the assessing officer is incorrect.

Before proceeding to examine whether the officer has really rectified a mistake in the original assessment while exercising powers u/s 43, we have to consider whether the original assessment is incorrect and if so whether it has happened on account of mistake committed by the assessing officer which could be rectified in exercise of powers u/s 43. A plain reading of the above section makes it clear that the scheme of payment of tax at compounded rate under the said provision is a substitute for payment of turnover tax u/s 5(2) of the Act. While the turnover tax payable under the normal provision, that is charging section 5(2) is at the compounded rate on the actual sales turnover, the tax payable under the compounded scheme in lieu thereof u/s 7 is based on the purchase turnover. Obviously both the provisions provide for payment of turnover tax on the very same liquor sold in the relevant year because under the normal scheme tax is payable on the sales turnover and under the compounding scheme tax is payable based on the purchase price of the very same liquor. Therefore purchase price referred to in the section above extracted is the purchase price of the entire liquor sold during the relevant year, that is 2005-06 which includes the value of the opening stock of liquor with the purchases made in the year after excluding the value of closing stock. In any case, the purchase price referred to in section 7 is the purchase price of the entire liquor sold during the relevant year, which includes opening stock as well. So much so, the original assessment completed without taking into account the purchase value of the opening stock is a patent mistake which could be rectified u/s 43. We are of the view that where the assessment is made patently against the mandatory provisions, it could be corrected in rectification proceedings u/s 43. In our view, this is a fit case for rectifying the assessment originally done wrongly. We therefore uphold the order of the Tribunal on the jurisdiction aspect as well as on the merits. Consequently S. T. Revision is dismissed.