TaxTMI 
TaxTMI 
2018 (3) TMI 1103
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.... sale of ice-creams. The assessments were of the year 2015-2016 and 2016-2017. In April, 2015, the assessee made an application for compounding, which was not acted upon by the Assessing Officer, upon which the assessee commenced payment of tax on quarterly basis and continued for three quarters. In January, 2016 the Assessing Officer issued a notice to the assessee threatening cancellation of the compounding and regular assessment. The notice was on the ground that there could be no compounding applied for, for ice-creams which is not a cooked food. Regular assessment was completed for the year as seen from Exhibit P16 produced in W.P.(C)No. 12649 of 2017. 2. While the said proceedings were pending, in the next year ie: 2016-2017, the a....
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....d and subject the assessee to regular assessment under the provisions of the Act. The learned Single Judge held that it would be unconscionable for the department to now take a stand that the petitioner should pay tax on regular basis under Section 6 of the KVAT Act and set aside the assessment orders. The learned Single Judge also deprecated the manner in which the Commercial Taxes Department in the State was functioning. 4. We fully agree with the learned Single Judge's finding in so far as the functioning or the lack of it, of the Commercial Taxes Department. At the first instance a compounding application was not responded to and after three quarters a notice was issued threatening cancellation. In the very next year the assessee aga....
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.... food other than those served to any airline service company or institution or shipping company for serving in aircraft, ship or steamer or served in aircraft, ship, steamer, bar attached hotels and star hotels." As against this, 'Ice-creams' specifically is included in the notified list of goods taxable @ 12.5% under entry 64(9): "64. Milk products including, condensed milk, ghee, butter, butter oil, ice creams, margarine, whether or not bottled, canned or packed. xxxxx xxxxx xxxxx (9) Ice cream." 7. The learned counsel for the respondent also has a case that ice-creams would be covered under sweets, since sweets are also included in the provision for compounding under section 8. The learned counsel....
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....ms" having been specifically referred to under the notified goods, there can be no general meanings applied to permit a particular scheme applicable to a different entry. When "icecream" "cooked food" and "food" are separately included in the schedules and notifications prescribing the rates of taxation, we cannot understand the legislature having an intention to include all cooked foods, in common parlance, under the compounding scheme. 9. When ice-cream is treated as a separate commodity included in the notified goods taxable at 14.5% there could not have been a compounding application filed by the petitioner, taking icecreams to be coming within the definition of cooked-food. Even if an order permitting such compounding was passed, it....
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.... an application for compounding not being responded to and the assessee permitted to make remittances under the scheme, then it cannot be found to be non-existent for the purposes of a suo motu revision. We would have send it back for such consideration but for the hidden prejudice caused to the assessee by reason of the statutory consequences visiting the assessee for reason of the purchase details not being uploaded; in the given circumstance. 11. Considering the controversy and also keeping in mind the hardship as projected by the learned Counsel for the assessee, we deem it proper to dispose of the appeal with the following directions, while vacating the orders of the learned Single Judge interfering with the cancellation of compound....