2017 (4) TMI 1389 - HC - VAT and Sales Tax

Court Upholds Tax Assessments, Dismisses Appeals

PARISONS FOODS (P) LTD. Versus STATE OF KERALA AND ANOTHER

The court dismissed the writ appeal, revision petition, and writ petition, finding the assessments completed by the authorities within permissible time ... Jurisdiction - time limitation - Whether the assessment under the CST Act could be completed by the authorities of the Department of Commercial Taxes of the State availing the extended time for the relevant year, in terms of the KGST Act/Rules, tracing the source of power to Section 9 (2) of the CST Act, Rule 6 (5) of the CST [Kerala] Rules, Section 17 of the KGST Act, Section 25 of the KVAT Act and the relevant Rules thereunder? Held that:- It is true that the proceedings had to be finalized by the authorities of the State as if it were the proceedings in respect of assessment/collection of tax payable to the State. Thus, a 'deeming provision' is introduced, enabling the authorities to bank upon the provisions of the State law, to deal with the situation. The position may be different, if any specific provision is incorporated under the CST Act/Rules in relation to the issue in question, by virtue of incorporation of term 'subject to other provisions of this Act and the rules made thereunder' under Section 9(2) - By virtue of the relevant provisions in the Finance Act, time for completing assessment in respect of the assessment year has been specifically extended by the State Government, to the requisite extent and as such, the CST assessment proceedings initiated/finalized by the authorities by issuing pre-assessment notice cannot be held as barred under any circumstances. Petition dismissed. Issues Involved:1. Whether the assessment under the Central Sales Tax Act (CST Act) could be completed by the State authorities availing the extended time under the Kerala General Sales Tax Act/Rules (KGST Act/Rules).2. Whether the proceedings initiated by the authorities were barred by limitation.3. Applicability of Section 17D of the KGST Act to CST assessment.4. Validity of 'F' Forms issued in connection with the transaction between the appellant and the consignee.5. Whether the principle of 'actus curiae neminem gravabit' applies to the case.Issue-wise Detailed Analysis:1. Assessment under CST Act using Extended Time under KGST Act/Rules:The primary question was whether the assessment under the CST Act could be completed by the State authorities using the extended time limits provided under the KGST Act/Rules. The court noted that Section 9(2) of the CST Act allows State authorities to assess, re-assess, collect, and enforce payment of tax as if it were payable under the State's general sales tax law. Since no specific time limit is prescribed under Rule 6(5) of the CST (Kerala) Rules, the authorities could rely on the extended time provisions under Section 17 of the KGST Act, which was amended by the Finance Act 2009 to extend the time for completing assessments.2. Barred by Limitation:The appellant contended that the proceedings were barred by limitation, arguing that the maximum period for completing re-assessment under Rule 6(7) and 6(8) of the CST (Kerala) Rules should be read into Rule 6(5). The court rejected this argument, stating that the absence of a specific time limit under Rule 6(5) meant the authorities could rely on the KGST Act's provisions. The court emphasized that the law must be taken as it is, and the conscious decision by the legislature not to prescribe a time limit under Rule 6(5) must be respected.3. Applicability of Section 17D of the KGST Act to CST Assessment:The court referred to a previous decision (Wilson Joseph Vs. Commercial Tax Officer) where it was held that Section 17D of the KGST Act is applicable to CST assessments. This decision was confirmed by a Division Bench, reinforcing that the State authorities could use the provisions of the KGST Act for CST assessments.4. Validity of 'F' Forms:The court noted that the Commercial Tax Officer, Avinashi, had informed the second respondent that the 'F' Forms issued to the dealer by the consignee were invalid. This invalidation was crucial as it affected the exemption claimed by the appellant based on these 'F' Forms. The court upheld the authorities' decision to negate the exemption based on the invalid 'F' Forms.5. Principle of 'actus curiae neminem gravabit':The court applied the principle of 'actus curiae neminem gravabit,' which means an act of the court shall prejudice no man. The court noted that the interim stay orders had prevented the authorities from finalizing the assessment within the extended time. Therefore, the assessment finalized after the stay was lifted should be considered within time.Conclusion:The court dismissed the writ appeal, revision petition, and writ petition, finding no merit in the appellant's arguments. The assessments initiated and finalized by the authorities were held to be within the permissible time limits, and the reliance on the KGST Act's provisions was deemed appropriate. The court also upheld the invalidation of the 'F' Forms and the application of the principle of 'actus curiae neminem gravabit.'