1958 (3) TMI 53 - HC - VAT and Sales Tax

Validity of Assessment Upheld under Repealed Sales Tax Act

M Abramai Versus Commissioner of Sales Tax, Kerala State and Others

The court upheld the validity of the assessment by the 3rd respondent under the Cochin Sales Tax Act, XV of 1121, despite its repeal, citing the liability ... - Issues Involved:1. Jurisdiction of the 3rd respondent to assess under the repealed Cochin Sales Tax Act.2. Validity of the assessment made without notice as per section 11 or section 19 of the Cochin Act.3. Bar of limitation for assessment under the Travancore-Cochin General Sales Tax Act.4. Legality of the appellate and revisional orders.5. Claim for refund of sales tax allegedly illegally levied and collected.Detailed Analysis:1. Jurisdiction of the 3rd respondent to assess under the repealed Cochin Sales Tax Act:The primary issue was whether the 3rd respondent had jurisdiction to assess the petitioner for the period 1-1-1125 to 15-10-1125 after the repeal of the Cochin Sales Tax Act by the Travancore-Cochin General Sales Tax Act. The court held that the assessment was indeed under the Cochin Sales Tax Act, XV of 1121, as evidenced by the notice of final assessment and demand, which referenced the Cochin Sales Tax Act. The court further concluded that the repeal of the Cochin Act did not affect the jurisdiction of the 3rd respondent to make the assessment, as the liability to pay tax was already incurred under the Cochin Act before its repeal. The General Clauses Act provisions, specifically clauses (c) and (e) of section 4, were applied to maintain the liability despite the repeal.2. Validity of the assessment made without notice as per section 11 or section 19 of the Cochin Act:The petitioner contended that the assessment was invalid due to the lack of necessary notice as per section 11 or section 19 of the Cochin Act. The court found that the petitioner did not submit a voluntary return of the turnover, which negated the requirement for a notice under section 11(3)(a). The assessment was made under section 11(5) of the Act to the best of the officer's judgment, and the assessee's representative was heard before the final assessment, thus validating the process followed by the 3rd respondent.3. Bar of limitation for assessment under the Travancore-Cochin General Sales Tax Act:The petitioner argued that if the assessment was under the Travancore-Cochin General Sales Tax Act, it would be barred by limitation. However, the court clarified that the assessment was under the Cochin Sales Tax Act, XV of 1121, and not under the Travancore-Cochin Act. Therefore, the limitation issue did not arise as the assessment was made within the four-year period allowed by the Cochin Act.4. Legality of the appellate and revisional orders:The appellate and revisional orders were challenged on the same grounds as the original assessment order. The court held that these orders were valid as they were passed with jurisdiction under the Cochin Sales Tax Act. The appellate authority and the revisional authority both confirmed that the assessment was within the permissible time frame and under the correct legislative framework.5. Claim for refund of sales tax allegedly illegally levied and collected:Given that the assessment was held to be valid and with jurisdiction, the court found no basis for the claim that the sales tax was illegally levied and collected. Consequently, the prayer for a refund of the sales tax was denied.Conclusion:The court dismissed the application, holding that the assessment by the 3rd respondent was valid and within jurisdiction under the Cochin Sales Tax Act, XV of 1121. The appellate and revisional orders were also upheld. The claim for refund was rejected, and the petitioner was ordered to pay costs fixed at Rs. 250.