TMI Blog2018 (3) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... as permitting the assessee to make remittances under the scheme for the subsequent year also when already notice was issued for cancellation of the compounding in the previous year. There can be no contumacious conduct found on the part of the asessee. The assessing officer would issue fresh notice for assessment, and the assessee would be entitled to produce the purchase invoices for the two years, which shall be taken into account and the input tax credit allowed to the extent proved by invoices - appeal disposed off. - W.A. Nos.387 And 516 of 2018 - - - Dated:- 5-3-2018 - MR. K. VINOD CHANDRAN AND MR. ASHOK MENON, JJ. For The Appellant : Sri C. E. Unnikrishanan For The Respondent : Sri. Jose jacob JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P16 and that for the first three quarters of 2016-2017 are seen from Exhibits P17, P18 and P19 produced in W.P.(C)No. 12649 of 2017. The order for the last quarter of 2016-2017 is found in W.P. (C)No.23157 of 2017. 3. The assessee challenged the aforesaid orders in the two writ petitions. The assessee contended that though specific permission was not granted on the compounding application and an order issued, the payment of quarterly tax, as per the scheme makes it a concluded contract and the Department cannot resile from it in the course of an year. The learned Single Judge allowed the claim of the assessee. The learned Single Judge by the impugned judgment, relied on Johnson Johnson Ltd. V. Assistant Commissioner [2009 23 VST 274] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not having looked at the applications in time. In any event we are more concerned with the merits of the matter. The lethargy of the department,however,cannot absolve the assessee from the natural consequences flowing from the Act. 5. The learned Special Government Pleader would place before us a decision of the Division Bench of this Court reported in Caravan Softies v. State of Kerala [(2006) 148 STC 393 (Ker)] and a Full Bench decision of the Gwalior Bench of the High Court of Madhya Pradesh in Commissioner of Sales Tax, M.P. V. Gyanmal Kesharichand [1984 (55) STC 140] to urge the position that ice-cream is not a cooked food. We notice that the consideration therein made, was of in pari materia entries under the Schedule to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as generally understood can be termed a cooked food a food or a sweet . It may in general terms be any or all of these, but we are concerned with the specific entries in a taxing statute for purposes of taxation. The common parlance test has no relevance when there is a specific entry. Ponds India Limited v. Commissioner of Trade Tax (2008) 15 VST 256 (SC) held that Different tests are laid down for interpretation of an entry in taxing statue namely dictionary meaning, technical meaning, users point of view, popular meaning etc (sic-para:43). It cannot normally be used for the purpose of interpreting a taxing statute or classification of a product viz-a-viz an entry in statute. Though common parlance can be an aid to interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to resiling from the contract, but would be a permissible exercise for reason of prejudice occasioned to the Revenue. Ice-cream, as is seen from KVAT Act, is treated differently from cooked food and is taxable at a higher rate and included in the notified goods. There could not have been an application for compounding filed and in such circumstances, we are of the opinion that the learned Single Judge ought not to have set aside the assessment. 10. Ideally the Department ought to have taken up the matter under Section 56, but they were disabled in so doing for reason of the absence of an order permitting compounding. When there is deemed permission then there is a deemed order too, which can be revised. It is trite that when there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt officer could have rejected the application. The department was not vigilant but was also lethargic in so far as permitting the assessee to make remittances under the scheme for the subsequent year also when already notice was issued for cancellation of the compounding in the previous year. There can be no contumacious conduct found on the part of the asessee. 13. Further under the regular assessment the assessee would have uploaded the purchases and would also have been entitled to input tax credit, which now the aseessee is unable to claim. Hence the assessing officer would issue fresh notice for assessment, and the assessee would be entitled to produce the purchase invoices for the two years, which shall be taken into account and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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