2010 (5) TMI 780 - HC - VAT and Sales Tax

Kerala GST Act Section 17B Validated, Petitioner Can Challenge Assessments

The court upheld the constitutionality and validity of Section 17B of the Kerala General Sales Tax Act, 1963, along with related assessments. The ... Whether prayers for declaring section 17B of the Kerala General Sales Tax Act, 1963 inserted by the Kerala Finance Act, 2005 as unconstitutional and ultra vires? Held that:- Section 17B of the KGST Act introduced through the Finance Act, 2005 does not suffers from any infirmity nor it is ultra vires of the Constitution and other provisions. Hence the prayer in this regard is liable to be rejected. Consequently no reason to interfere with exhibit P3 assessment invoking jurisdiction under article 226 of the Constitution of India. However, it is made clear that the petitioner has got liberty to approach the statutory appellate authority by taking all factual contentions against such assessment, apart from the contention regarding validity of section 17B on the factual matrix of the case. It is also made clear that the question regarding liability for payment of interest under section 23 of the KGST Act also can be agitated by the petitioner in such appeal. If such appeal is filed, the appellate authority shall consider the same untrammeled by any observations made herein. It is further made clear that if the petitioner has not filed any statutory appeals so far, the petitioner will be given liberty to file appeal against exhibit P3, within a period of one month from today along with petition seeking condonation of delay. The appellate authority shall consider the time spent before this court for getting the writ petition disposed as a valid ground for condonation of delay. Needless to say that the petitioner is at liberty to seek appropriate interim relief from the statutory authority if any such appeal is filed. Issues Involved:1. Constitutionality of Section 17B of the Kerala General Sales Tax Act, 1963.2. Validity of Exhibit P2 notice and Exhibit P3 assessment.3. Retrospective effect of Section 17B.4. Levy of tax during the interregnum period.5. Burden of proof regarding the last sale point within the State.6. Applicability of Article 265 of the Constitution of India.Issue-wise Detailed Analysis:1. Constitutionality of Section 17B of the Kerala General Sales Tax Act, 1963:The petitioner challenged the validity of Section 17B, asserting it is inconsistent with the Kerala Provisional Collection of Revenues Act, 1985. However, the court found that Section 17B, introduced by the Finance Act, 2005, prescribes a special method for completing assessments for the period from April 1, 2004, to July 27, 2004. The court held that Section 17B does not suffer from any infirmity nor is it ultra vires of the Constitution.2. Validity of Exhibit P2 notice and Exhibit P3 assessment:The petitioner sought to quash Exhibit P2 notice and Exhibit P3 assessment. The court noted that the petitioner had purchased cement during the specified period by paying 10% tax and making a declaration that he was the last seller. The court held that the petitioner is liable for the payment of tax at the rate of 5% on the resale of cement as per Section 17B. Consequently, the court found no reason to interfere with Exhibit P3 assessment under Article 226 of the Constitution of India.3. Retrospective effect of Section 17B:The petitioner argued that Section 17B, introduced with effect from April 1, 2005, could not have retrospective effect for the period from April 1, 2004, to July 27, 2004. The court clarified that Section 17B is a special provision for completing assessments for a specific period within the previous accounting year and does not require retrospective operation. Therefore, the argument that Section 17B lacks retrospectivity was rejected.4. Levy of tax during the interregnum period:The petitioner contended that there was no charging section imposing a levy of tax at 5% on the last sale point due to the retrospective effect of the Finance Act, 2004. The court held that the declared provision in the Finance Bill, 2004, had the force of law from April 1, 2004, to July 27, 2004, creating a liability for the petitioner to pay tax at 5% on the last sale point. The court further noted that Section 17B prescribes a special procedure for completing assessments during this interregnum period.5. Burden of proof regarding the last sale point within the State:The learned Government Pleader argued that the petitioner bears the burden of proving that he is not the last seller of the commodity within the State. The court noted that the petitioner had submitted declarations indicating he was the last seller, thereby incurring an obligation to pay tax at the last sale point. The court found that the petitioner could not escape liability by claiming non-collection of tax at the last sale point.6. Applicability of Article 265 of the Constitution of India:The petitioner argued that Section 17B is ultra vires of Article 265 of the Constitution, which stipulates that no tax shall be levied and collected except by authority of law. The court held that the declared provision under the Finance Bill, 2004, deemed to have amended the charging section, provided the necessary authority for the levy and collection of tax during the specified period. Therefore, the court found that Section 17B does not violate Article 265.Conclusion:The court dismissed the writ petition, upholding the constitutionality and validity of Section 17B and the related assessments. The petitioner was granted the liberty to approach the statutory appellate authority to contest the factual contentions and the liability for interest under Section 23 of the KGST Act. The court also allowed the petitioner to file an appeal within one month, considering the time spent in court as a valid ground for condonation of delay.