H.L.DATTU v. State of Kerala (2003) 11 KTR 140 isapplicable to the case

H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- C.M.Appln. No.898 of 2008 & S.T.Rev. No.276 of 2008 ------------------------------------------ Dated, this the 29th day of September, 2008ORDERH.L.Dattu, C.J.Sri. Muhammed Rafiq, learned Government Advocate, is directedto take notice for the respondent. (2) After hearing the learned counsel for the parties, we are ofthe opinion, that the delay in filing the revision petition requires to becondoned and accordingly it is condoned. (3) Heard Sri.V.Philip Mathews, learned counsel appearing forthe petitioner, and Sri. Muhammed Rafiq, learned Government Advocate, appearing for the State government. (4) The facts in brief are:- The assessee is a proprietary concernengaged in the business of selling hardwares, sanitary items, paints, etc. Petitioner is also a dealer registered both under the provisions of the KeralaGeneral Sales Tax Act, 1963 ('KGST Act' for short) and the Central Sales TaxAct, 1956 ('CST Act' for short).

(5) In the annual returns filed for the assessment year 2002-03,the petitioner had made two claims, firstly, that he has purchased certain goodsworth Rs.2,32,387/- from M/s. Paint Palace, Kozhencherry, and the saleseffected by them are second sales and therefore, eligible for exemption under S.T.Rev. No.276 of 20082KGST Act, and secondly, for deduction towards the return of the goods worthRs.40,655/- from total and taxable turnover. Both these claims are rejectedby the assessing authority, firstly on the ground that the purchases effected bythe petitioner is from an unregistered dealer and, therefore, the petitionercannot claim the sales turnover of Rs.2,32,387/- as second sales. In so far asthe claim for deduction towards sales returns, the assessing authority is of theopinion that the said returns were not done within six months as contemplatedunder Rule 9 of the Kerala General Sales Tax Rules ('the Rules' for short).(6) The assessee being aggrieved by the assessment order hadunsuccessfully filed first appeal as well as second appeal before the firstappellate authority and the appellate Tribunal, respectively.

(7) The assessee being aggrieved by the orders of the Sales TaxAppellate Tribunal in T.A.No.226 of 2005 dated 5th May, 2007 is before us inthis sales tax revision. (8) The assessee has framed the following questions of law forour consideration and decision. They are as under: “i) Whether on the facts and in the circumstances of thecase and in the light of Annexure-B the Appellate Tribunal isright in holding that the Petitioner is not entitled to exemptionfrom sales tax on the sales for the year 2002-03?ii) Whether the decision of this Hon'ble Court in S.T.Rev. No.276 of 20083E.M.Purushotham Vs State of Kerala (2003) 11 KTR 140 isapplicable to the case in hand and whether that decision lawdown the correct law?(9) The admitted facts are:- The assessee had purchased certaingoods from M/s. Paint Palace. Admittedly, the said dealer was not a registereddealer as on the date of purchase. The purchases so effected by the assesseeis sold to the customers.

The assessee had claimed a sum of Rs.2,32,387/-towards purchases from M/s. Paint Palace as second sales. (10) In our opinion, for claiming second sales, the assessee musthave purchased the goods from a registered dealer under the KGST Act. Theconcurrent finding is there on this aspect of the matter both by the assessingauthority as well as by the first appellate authority and the Tribunal. They areof the opinion that M/s. Paint palace was not a registered dealer and, therefore, the assessee is not entitled for the claim of second sales in a sum ofRs.2,32,387/-. In view of this concurrent findings which we are in fullagreement, the first ground urged by the learned counsel for the petitioner hasno merit and accordingly the same requires to be rejected. (11) In so far as the returned goods is concerned, under the Rules the deduction can be allowed only if the dealer has returned the goodsto his purchaser within six months from the date of delivery of the goods.

Inthe instant case, there is a finding by all the authorities under the Act that the S.T.Rev. No.276 of 20084goods were returned only after six months. Since the assessee has notcomplied with the condition prescribed under Rule 9 of the Rules, in ouropinion, the assessing authority was justified in rejecting the aforesaid claimalso. (12) Having gone through the orders passed by the Tribunal, weare of the opinion, that, the reasoning and conclusion reached by the Tribunalis neither arbitrary nor erroneous, or they have failed to decide or erroneouslydecided the question of law raised in the appeal. In that view of the matter, wedecline to entertain this revision petition. (13) Therefore, while rejecting this revision petition we answerthe questions of law framed by the assessee against the assessee and in favourof the Revenue. (14) Consequently, I.A.No.2157 of 2008 also stands rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk