2012 (8) TMI 1061

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.... first appellate authority. The revisions are with respect to the years 2006-07 and 2007-08. 2. The assessee is a dealer in ice creams, registered under the Kerala Value Added Tax Act, 2003, hereinafter referred to as "the Act", and who has opted for paying tax under Section 6(5) of the Act. Section 6(5) provides payment of presumptive tax at the rate of 0.5% by such dealers as specified therein, whose total turnover for an year is below Rs. 50 lakhs; the limit being so for the respective assessment years. 3. In the year 2006-07, the assessee conceded a turnover of Rs. 21,95,176.60. The returns filed by the assessee disclosing the above turnover was rejected, inter alia, on the basis of the proceedings initiated by the Intelligence Wi....

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....e first appellate authority. The input tax credit was also declined. 5. The assessee has raised a number of questions of law in the above revisions as arising from the order of the Tribunal. Since the revisions are heard at the stage of admission itself, we do not propose to frame any question of law. The issue that comes up for consideration in the above revisions is essentially the legality of the best judgment assessment made on the ground of offences detected and compounded and the denial to the assessee the benefit of payment of tax under Section 6(5) of the Act. 6. The claim of the assessee that he ought to have been continued as a presumptive dealer, entitled to payment of tax at 0.5%, and the claim for input tax credit is mutu....

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....ssions and suppressions cannot at all be interfered with, since it is made on best judgment and the exercise so carried on in this case cannot at all be termed to be in excess of the jurisdiction or perverse. The assessing authority cannot be said to have exercised its power to make best judgment assessment improperly. 8. The next issue would be the assessee being made liable under Section 6(1) rather than under Section 6(5). Admittedly the assessment made would render the assessee's turnover having exceeded the limit as prescribed under Section 6(5). The addition made on best judgment is the turnover of the assessee that ought to be considered for the purposes of assessment under the provisions of the Act. There can be no distinctio....

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....slature has stepped in with the introduction of a proviso by Kerala Finance Act, 2011; in the following lines: "Provided also that notwithstanding anything contained in  the Act or rules made thereunder, if the turnover of a dealer, who  opted for payment of tax under this sub-section, has exceeded  the turnover limit during the course of an year, he shall be eligible  for input tax credit on the turnover in excess of sixty lakh rupees". The said proviso is sought to be given retrospective effect with effect from 1.4.2005 by Kerala Finance Bill, 2012. The said proviso is in tune with the scheme of presumptive tax and lends credence to our understanding; stated above. It was the assessee who chose to suppress ....