TaxTMI 
TaxTMI 
2010 (5) TMI 780
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....uant to exhibit P2 notice was completed on March 15, 2006, as per exhibit P3. The petitioner is also seeking to quash exhibit P3 assessment, vide additional prayer incorporated through I.A. No. 6496 of 2009. The petitioner is a registered dealer under the KGST Act engaged in second and subsequent sale of cement, which was included in the description of goods under entry 27 of the First Schedule to the KGST Act, taxable at 15 per cent on the point of first sale in the State. Through the Kerala Finance Bill, 2004 amendment was proposed bringing the goods mentioned under entry 27 of the First Schedule, to the Fifth Schedule including the same as entry 16 of that Schedule, and to make it taxable at 10 per cent on the first sale point and five per cent on the last sale point. The Finance Bill contained a declaration as provided under section 3 of the Kerala Provisional Collection of Revenues Act, 1985 (Act 10 of 1985) which by itself created the provisions of the Finance Bill to have force of law from the 1st day of April, 2004. But when the Kerala Finance Act, 2004 was passed by the Legislature, for which consent was given on July 28, 2004, the original entry 27 of the First Schedul....
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....n the petitioner at five per cent on the sales of cement which are purchased by paying tax only at 10 per cent adding 14.5 per cent gross profit on such turnover. It is also stated that the tax due thereon was demanded along with interest under section 23 of the KGST Act due thereon from July 2004 onwards. Section 17B which was introduced into the KGST Act by virtue of the Finance Act, 2005 reads as follows: "17B. Special provision for completion of assessment.-Notwithstanding anything contained in this Act, a dealer who had purchased any goods falling under serial numbers 12 to 32 of item (iv) of subclause (18) of clause 3 of the Kerala Finance Bill, 2004 during the period from the first day of April, 2004 to the 27th day of July, 2004, from any registered dealer after paying tax at the rates shown in column (4) against the said serial numbers, such dealer shall pay tax on the re-sale of such goods at the rates mentioned in column (6) against such goods and the assessing authority shall complete the assessment under section 17 of the Act." It is an admitted case that for the period from April 1, 2004 to July 27, 2004 the goods dealt with by the petitioner will fall square....
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.... other revenue in force immediately before the 1st day of April following the date of introduction of the Bill. (2) Where a declared provision ceases to have the force of law under clause (b) or clause (c) of sub-section (2) of section 4, refunds shall be made of all taxes, duties, cesses, fees or other revenues collected which would not have been collected if the declaration in respect of it had not been made. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the amount to be refunded under this section may at the option of the person entitled to the refund, be adjusted against any tax, duty, cess, fee or other revenue which is, or may become, recoverable from such person." The contention of the petitioner based on the above provision is that, even though the amendment proposed through the Finance Bill, 2004 is having effect of a declared provision and force of law from April 1, 2004, it became ceased to have force of law by virtue of operation of the Finance Act, 2004 which was introduced with retrospective effect from April 1, 2004. Therefore as per section 5(2) the petitioner is eligible for refund of tax collected which would not have been ....
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.... 27, 2005. From section 1(2) of the Kerala Finance Act, 2005 it is evident that subsection (7) of section 3 of the Finance Act through which section 17B was introduced was given effect only from April 1, 2005. But going by provision contained in section 17B it is clear that the said provision is introduced specifically prescribing procedure for completion of assessment with respect to the period from April 1, 2004 till April 27, 2004. It is evident that the assessment with respect to the year 2004-05 will fall due only on April 1, 2005. Therefore section 17B, being a special provision for enabling and prescribing method of assessment with respect to a period specifically mentioned therein need not have any retrospectivity for completing the assessment following that particular method. In other words, section 17B is a special procedure prescribed for completing assessment with respect to a particular period falling within the previous accounting year. Hence the argument that section 17B is not having retrospectivity, cannot be accepted. Another aspect highlighted by the petitioner is that the charging section under the KGST Act remained unamended by virtue of retrospectivity of t....
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....ecause he has got a claim for refund based on section 5 of Act 10 of 1985, it could not be contended that there existed no provision of "levy" of tax during the interregnum period. Section 17B which prescribes special procedure for completing assessment in this regard, in my considered opinion, could not be held as invalid based on the contention that there existed no corresponding charging provision. In fact, by virtue of the declared provision under the Finance Bill the charging section deemed to have been stood amended. Of course, by way of retrospectivity given in the Finance Act the amendment was in fact not came into force. It is to ensure the benefit of such retrospective amendment that a provision for making refund of tax when a declared provision ceases to have effect is incorporated in Act 10 of 1985. The learned Government Pleader Sri V.K. Shamsudheen had brought to my notice a Division Bench decision of this court in Paul Varghese v. State of Kerala [2005] 13 KTR 29 (Ker). Interpreting the provisions of second proviso to section 17(6) of the KGST Act it is held that such a provision even though introduced after expiry of period of limitation provided under section 17....