TMI Blog2005 (3) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner for the years 1998-99 to 2001-02 were completed under section 17(4) of the Act based on statements filed by the petitioner in form No. 21CC prescribed under rule 18A of the Kerala General Sales Tax Rules, 1963. It is seen from the said assessment orders produced as exhibits P1 to P4 in both the above writ petitions that the officer completed the assessments as nil assessments probably because the annual turnover declared and accepted for all the four years was below Rs. 2 lakhs. However, later officer issued section 19(1) notice for all the assessment years produced as exhibit P5 in the writ petitions proposing to revise the assessments to demand tax on the declared turnover under second proviso to section 5(1)(v) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary and discriminatory. I heard counsel appearing for the petitioner and also Special Government Pleader, Mr. Raju Joseph, appearing for the respondents. The contention of the petitioner is that section 5(1) of the Act provides for levy of tax on dealers other than casual traders and agents of non-resident dealers only if the total turnover of the dealer for an year is not less than Rs. 2 lakhs. According to the petitioner, the turnover limit for liability provided under section 5(1) applies to goods covered under the Fifth Schedule also. The further contention raised is that the second proviso to section 5(1)(v) should be declared invalid as the same is against the main charging section, namely, section 5(1) of the Act. The Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, of the Fifth Schedule irrespective of his turnover: Provided also that where a registered dealer, after purchasing the goods on payment of the tax mentioned in column (4) of the Fifth Schedule, (a) uses or disposes of such goods in any manner other than by way of sale within the State, or (b) despatches them to any place outside the State except as a direct result of sale in the course of inter-State trade or commerce, he shall pay tax at the rate shown in column (6) of the said Schedule on the purchase turnover of the goods. . . . From the second proviso to section 5(1)(v) it is clear that a registered dealer selling any Fifth Schedule goods is liable to pay sales tax on his turnover of such goods either at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction so that there is no discrimination between registered dealers and unregistered dealers so far as levy of tax is concerned. The contention of the Special Government Pleader is that the Legislature consciously provided for levy of tax on registered dealers engaged in purchase and sale of the Fifth Schedule items irrespective of their turnover and the court cannot by interpretation change the incidence of tax. After hearing both sides I am of the view that the petitioner's challenge against the validity of the second proviso to section 5(1)(v) cannot be sustained on the ground of discrimination, because firstly registered dealers and unregistered dealers do not come under the same class and, secondly goods brought under the Fifth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not think the argument can be accepted because, whatever be the reason, the Legislature has decided to include certain items of goods under one class under the Fifth Schedule and the levy of tax provided for those goods unlike other goods, is generally at two points. Here again, the court is not competent to go into the basis of grouping some goods under the Fifth Schedule to the Act for the purpose of separate scheme of levy and the Legislature has the freedom for fixing rate of tax and point of levy of tax on goods coming under that Schedule. Since timber falls under a separate class of goods grouped under the Fifth Schedule, there is nothing wrong in providing an absolute liability, irrespective of turnover on the sale of such goods by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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