TMI Blog2016 (7) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... o be fixed in the building premises of the assessee like the Vitrified Tiles in the present case. In the present case, the Tiles purchased from the State of Gujarat on payment of Central Sales Tax and fixed in the floor of the Restaurant in question, cannot be said to be "goods in stock" while they can definitely be said to be "goods" as such. The restriction against sale of such goods which were purchased from outside the State stands complied with in the present case, as it is not the case of the Revenue that the Vitrified Tiles purchased by the assessee from the State of Gujarat in this case, were sold in the course of his business. Therefore, the question of violation of condition as specified under Rule 135(2) of the KVAT Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a violation of the conditions and restrictions imposed under Rules 135 and 144 of the KVAT Rules, 2005 and the petitioner assessee was thus ineligible to continue under the Composition Scheme under Section 15(1) of the KVAT Act, 2003 and therefore liable to pay the regular rate of tax on the sales/turnover as per Section 3 of the KVAT Act, 2003. 3. The learned counsel for the petitioner submitted that, despite a representation made to the said authority that the Vitrified Tiles were purchased from the State of Gujarat upon payment of Central State Tax, since the said goods were purchased in the course of inter-State trade and were used for laying the floor of the restaurant run by the petitioner assessee, they could not be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable. He therefore prayed that present petition deserves to be dismissed. He also submitted that the validity of Section 15(1) of the Act has been upheld by this Court in the case of New Taj Mahal Caf v. State of Karnataka [Writ Petition No. 10135 of 2006, dated 26-3-2009] and the Writ Appeals are pending before the Division Bench. 5. I have heard the learned counsel and perused the records. 6. This Court is not presently concerned with the validity of the provisions of Section 15(1) of the Act and the only matter, which arises for consideration by this Court is, the reason for which the assessing authority sought to deny the benefit of the Composition Scheme to the petitioner assessee and whether the Vitrified Tiles purchased by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well acquainted with the commercial terms, cannot be allowed to take such perverse views. 8. It is this kind of impractical and hyper technical approach of the assessing authorities which seriously dents the image of the Revenue Departments in our country. While on the one hand the Government is talking about Tax Payers friendly environment in the country, on the other hand these kind of hyper technical view taken by taxing authorities flies in the face, which really shocks the conscience of the Court. 9. The purpose of Composition Scheme is of course to give a benefit of concession to the assessee to pay a composite and concessional rate of tax on the gross turn over and to avoid the hassles of assessment of tax on each item of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e restriction against sale of such goods which were purchased from outside the State stands complied with in the present case, as it is not the case of the Revenue that the Vitrified Tiles purchased by the assessee from the State of Gujarat in this case, were sold in the course of his business. Therefore, the question of violation of condition as specified under Rule 135(2) of the KVAT Rules, 2005 does not arise in the present case. 11. In the considered opinion of this Court, the respondent assessing authority has misused his power under Section 39(1) of the KVAT Act for reassessment of the assessee in the present case on the aforesaid ground. Therefore, notwithstanding the availability of the alternative remedy by way of appeal against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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