Kalyan Tourist Home Versus State of Kerala
GST
2017 (1) TMI 1716 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 23-1-2017
S.T. Rev. No. 33 of 2014
GST
T.B. Radhakrishnan And Devan Ramachandran, JJ.
For the Appellant : Thomas Abraham and K.P. Pradeep
For the Respondent : Mohammed Rafiq, Sr. Government Pleader
ORDER
T.B. Radhakrishnan, J.
1. These revisions are by an assessee who is eligible to pay tax at compounded rate under S. 7 of the Kerala General Sales Tax Act, 1963, 'Act', for short. It is also not in dispute that the assessee is one who has a bar attached hotel of and below two star. This means that if he opts under S. 7 for payment of tax at compounded rate, he would be governed by S. 7(1)(i), which provision has two Clauses – (a) and (b), which operate in alternative. Clause (a) or (b) would apply depending upon which would bring home to the Revenue through the compounded scheme, higher revenue as tax. The assessee applied for payme
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ything depends upon the turnover or the total amount that would be generated as revenue through the taxes from the assessee for the relevant period to decide as to whether it is Clause (a) or (b) of S. 7(1)(i) that would apply. Decisions of the Hon'ble Supreme Court of India in Bhima Jewellery (M/s.) v. Asstt. Commissioner (Assessment), Kerala & Anr. (2014 (71) VST 110 (SC) : 2014 KHC 5346), Raju Jacob v. Sales Tax Officer (2006 (1) KLT 788 : 2006 KHC 246), Koothattukulam Liquors v. Deputy Commissioner of Sales Tax (2015) 12 SCC 794) and Annie George, Proprietrix v. The State of Kerala (2007 (1) KLT SN 4 (C. No. 6) : 2006 KHC 1701) do not go away from the principle that we have stated herein to that effect. While Koothattukulam Liquors (supra) dealt with a case of payment of tax at compounded rate on the basis of excise duty component, other decisions, particularly Bhima Jewellery (supra), deal with the quality of the contract of compounding and specifically state that compounding
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that rate of tax and the question whether the assessee would be able to opt as between Clauses (a) and (b) of S. 7(1)(i), is also within the bargain on which the compounding is accepted. So much so, the stand of the Revenue that the assessee/revision petitioner had to pay the particular amounts demanded by the assessing authority under S. 7 does not stand.
2. Be that as it may, we have also considered yet another submission. The plea of the assessee through its learned counsel is that the assessee had voluntarily made an option and the assessing authority had accepted tax from him. He, therefore, tries to build up a plea somewhere in the realm of what could be thought of, too remotely, as exchequer. We notice this to say that the crucial further argument is that the Accountant General's office had made an audit of the office, and in the course of the audit, the Accountant General's squad had pointed out that the assessee had not paid the entire amounts due under S. 7(1) of th
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gement of the State. In the course of such exercise, it is well within its fiscal management of the State Government and also through the controlling and regulatory power of the Accountant General's office to point out the statutory officers concerned, the deficit in payment of taxes. What has been done in the case in hand is that when the Accountant General's audit squad had pointed out the deficiency and deficit in the payment of taxes payable under S. 7(1) by the assessee, a notice was issued by the assessing authority calling upon the assessee to pay the balance amount. After such notice, a reply was delivered by the assessee. That was considered and thereafter, an order was issued apparently under S. 7. Calling it as an assessment order or a notice demanding payment, in law and in fiscal jurisprudence, it makes no difference because all that has been asked for is requiring the payment of amounts which are due to be paid merely by operation of law and not on the basis of an
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the assessing authority has accepted the option, and therefore, could not have done so without making a concession against any claim for further amounts. We state this argument only to be rejected because there is no question of any misrepresentation of any nature, since the payment of tax consequent on an option exercised by the assessee does not depend upon any representation of the assessing authority or any other statutory authority under the Act. What we say now is in tandem with what we have already said as to the automatic flow of the consequences of option. Further, there is no question of the assessee opting either for a particular rate of tax or for opting as between Clauses (a) and (b) of S. 7(1)(i) of the Act adverse to the interest of the Revenue. For the aforesaid reasons, we are of the view that the Tribunal cannot be criticised of having failed to decide or having left undecided any question of law which arises for decision in these cases. These revisions fail.
In the
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