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TMI Blog2015 (1) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... l Sales Tax Acts. In the course of business, the petitioner used to bring the live chicken and such other goods from outside the State, to be sold within the State. However, pursuant to the new enactment, i.e., Kerala Value Added Tax Act, which was brought into force with effect from April 1, 2005, the petitioner decided to have the benefit of reduced rate of tax applicable to the "presumptive dealers", who were not importers or dealers liable to tax under section 6(2) or dealers effecting first taxable sale of goods within the State and whose total turnover for an year was below Rs. 50 lakhs. The petitioner cut down the taxable turnover, stopped import from outside the State, surrendered the CST registration and confined the business within the State, with a maximum turnover of less than Rs. 50 lakhs, effecting the local purchase, which came to the first sale in the State. It was accordingly, that exhibit P1 application was submitted for registration under section 6(5), giving the factual particulars and satisfied the tax at the reduced rate for the different quarters ending on June 30, 2005, September 30, 2005 and December 31, 2005, effecting the payments on July 16, 2005, Novemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pay the tax, as prescribed under section 6(1). In the said circumstance, exhibit P4 pre-assessment notice under section 25 was issued to the petitioner on August 22, 2006 by registered post. 5. On service of notice, as observed by the first respondent, though two weeks' time was sought for on September 11, 2006 to comply with the requirement, the dealer had not responded further and accordingly, the assessment was finalised as per exhibit P6 order dated September 29, 2006, fixing the tax liability in respect of the year 2005-06, as proposed, followed by exhibit P7 demand. The petitioner is challenging the above proceedings in this writ petition, also contending that the petitioner had preferred exhibit P5 reply dated October 3, 2006 in response to exhibit P4 notice, which was served to the first respondent before despatching exhibit P6 and hence the said reply ought to have been considered, in the light of the law declared by this court in exhibit P8 judgment, reported in B.T. Mammoo v. Assistant Commissioner (Assessment) [1997] 107 STC 426 (Ker); [1998] 6 KTR 466 (Ker). 6. Heard Dr. K.B. Muhamed Kutty, the learned senior counsel for the petitioner as well as Mr. Shaij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods as presumptive tax instead of paying tax under subsection (1): Provided that a dealer holding stock of goods purchased in the course of inter-State trade on the date of coming into force of the Act, will have the option to pay tax under this sub-section from the beginning of the quarter following the quarter in which he has sold such goods in the State and paid tax under sub-section (1) of section 6 and his registration under the Central Sales Tax Act, 1956 (Central Act 74 of 1956) is cancelled: Provided further that any dealer covered by sub-section (1A) may, at his option pay tax under this sub-section from such period as may be prescribed: Provided also that a dealer shall not be eligible to opt for payment of tax under this sub-section if his total turnover in respect of goods to which this Act applies, whether under this Act or under the Kerala General Sales Tax Act, 1963 (15 of 1963) had exceeded fifty lakh rupees during the year preceding the year to which such option relates: Provided also that a dealer shall not be liable to pay presumptive tax under this sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was not a taxable commodity. 11. True, by virtue of entry No. 12 of the First Schedule of the Kerala Value Added Tax Act, "maize" is not a taxable item in the State. It is also true that the term "importer" as defined under section 2(xxii) of the Act means any person who obtains or brings any taxable goods from any place outside the State or country, whether as a result of purchase or otherwise, for the purpose of business. But referring to the other incriminating circumstances brought to light, particularly, the C forms given by the petitioner (particulars of which have been given in exhibit P6 order), the first respondent has found that the petitioner had issued the C forms even on March 31, 2005 and as such, had not surrendered the CST registration as on March 31, 2005, as stated in the letter dated March 31, 2005 while opting and applying for the "presumptive tax" registration. Various other adverse circumstances were also referred to in exhibit P6, which is not necessary to be looked into or discussed, for the purpose of this writ petition, since the issue can be decided with reference to the admitted turnover in respect of the previous year, which is more than Rs. 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of tax in respect of goods imported and sold within the State, compared to the goods locally purchased and sold and hence it is ultra vires being violative of article 301 read with article 304(a) of the Constitution of India. The above provisions read as follows: Article 301: "301. Freedom of trade, commerce and intercourse.-Subject to the other provisions of this part, trade, commerce and intercourse throughout the territory of India shall be free. 304. Restrictions on trade, commerce and intercourse among States.-Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law- (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) . . ." 15. Even going by the undisputed pleadings and proceedings, there is absolutely no challenge or discrimination with regard to the rate of tax in respect of broiler chicken, which is 12.5 per cent, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is always open for the petitioner to proceed on the normal and regular track for satisfaction of the tax under section 6(1), which alone has been done by the first respondent, passing exhibit P6 assessment order. But for the vague challenge as to the constitutional validity of the amended provision, the petitioner has not stated anything, in what way the provision is ultra vires to the Constitution or in what manner the State has exceeded in exercising its law making power. 17. There is a case for the petitioner that exhibit P2 notice was issued to the petitioner only on March 6, 2006, as a result of which, the petitioner could not collect tax at the normal rates from the customers. This argument does not persuade this court to draw an inference in favour of the petitioner in any manner. The liability to satisfy tax is not depending upon the right or chance of the dealer to have it passed on to the purchaser. Tax is payable at the instance of sale and only by virtue of the statutory prescription that the dealers have been permitted to pass on the liability to buyers; which in no case can be a "pre-condition" to have mulcted with the tax liability. 18. Exhibit P1 application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fringement of the "second proviso" to section 6(5), i.e., the admitted turnover of the petitioner for the previous year, as conceded in column No. 10 of exhi bit P1 application having more than Rs. 50 lakhs and hence it stands excluded by the statutory prescription itself. As such, no other ground is relevant or necessary to be looked into. 21. With regard to the contention of the petitioner that the first respondent ought to have referred to and considered exhibit P5 statement of objections, though preferred belatedly, as the same was served prior to despatch of exhibit P6 order, reliance is sought to be placed on the decision rendered by this court (vide exhibit P8) in B.T. Mammoo v. Assistant Commissioner (Assessment) Sales Tax Office, Special Circle, Kannur [1997] 107 STC 426 (Ker); [1998] 6 KTR 466 (Ker). The factual position in the said case is entirely different as discernible from the description given therein. It was the specific contention of the petitioner therein, that the statement of objection preferred by the petitioner was available in the records of the respondent. Availability of said statement of objection was conceded in the statement filed before the court by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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