TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 1090
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....rfeiture of tax under Section 46A of the Kerala General Sales Tax Act, 1963 [for brevity "KGST Act"]. A Division Bench of this Court had, considering Section 72 of the Kerala Value Added Tax Act, 2003 [for brevity "KVAT Act"]; which is in pari materia with Section 46A of the KGST Act, found, in Tata Teleservices Ltd. v. State of Kerala & Others [W.P.(C) No.27445 of 2005 & connected cases, dated 13.02.2009] that such forfeiture is possible. A later Division Bench, considering the issue in the instant revisions, doubted the interpretation and declaration of law and referred the issue to the Full Bench. The Full Bench has now answered the reference upholding the view of the earlier Division Bench. Hence, on the question of forfeiture, respectf....
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....questions we re-framed, are interlinked and the judgment of a Division Bench of this Court relied on by the Tribunal has a bearing on the issue. Sub-section (7B) of Section 7 was challenged as being ultra vires the Constitution insofar as it directed deduction of tax at source on the consolidated payments made in a works contract including inter-State transfer of goods. The challenge was upheld by a Division Bench of this Court in Siemens Ltd. v. State of Kerala [2002 (3) KLT 443]. The learned Senior Government Pleader Sri.Mohammed Rafiq would specifically point out that the said decision has been rendered for the assessment year 1999-2000 and there are substantial amendments made in the rules with effect from 01.04.2000 which removes the v....
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....sales". The argument seems to be that the declaration of the provision as ultra vires is only so long as inter-State transactions are also included in the provision. At the outset, we have to notice that this Court having held the provision to be ultra vires, it no longer has existence in the statute. The connected cases provision could have been amended to exclude inter-state transfer component available in the works contract, to direct deduction on that component taxable within the State. This obviously was not done. 5. The contention then raised is on the ground that Rule 22A as it existed in the assessment year under the consideration of the Division Bench in Siemens Ltd. had a proviso which read so: "Provided that no amount shall be....
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.... the declaration by a Constitutional Court as is seen in Siemens Ltd. We, hence, answer question No.(i) against the Revenue and in favour of the assessee. 6. The learned Government Pleader also relied on sub-section (10) of Section 7, which reads as under: "If the awarder affects any payment without deduction of the tax payable or without the permission of the assessing authority in case application is presented before him, the whole amount of tax payable shall be recovered from the awarder and all provisions of this Act for the recovery of connected cases tax including those relating to levy of penal interest and penalty shall apply as if the awarder is the assessee for the purposes of this Act". The sub-section cannot have any releva....
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....er of the Assessing Officer that there is no independent consideration as to the addition of the turnover on allegation of tax evasion and the addition made with respect to probable omissions and suppressions. This goes against the principle as laid down in Velimparambil Hardwares v. State of Kerala [1993 (2) KLT 394] and Kalika Hotel and Bar, Amballur (M/s.) v. State of Kerala [2012 (3) KHC 85]. We, hence, set aside the deletion of the additions as such made by the Tribunal and direct the Assessing Officer to look into it afresh after verifying the books of accounts, the certificate of registration and any other substantiating materials. We make it clear that the original certificate of registration of the KGST regime having been already s....