2009 (4) TMI 433 - SC - VAT and Sales Tax

Whether imposition of a different tariff in the middle of the assessment year could be given effect to in the absence of a proper machinery for computing the tax liability? Held that - The court was required to consider the scheme of the entire Act particularly the difference between sections 5 and 7 of the 1963 Act. It may be stated that section 5 which deals with normal assessment refers to tax on the turnover whereas section 7(7) refers to payment of tax on the amount of contract. The court was also required to consider whether section 43 could be invoked by the Department in cases following under the alternate mode of taxation under section 7 of the 1963 Act. In the circumstances, set aside the impugned judgment dated October 4, 2007 and restore Original Petition to the file of the Kerala High Court for de novo consideration in accordance with law and in accordance with the directions given hereinabove.

Issues:
1. Application of amended provisions of the Kerala Finance Act, 2001 for the assessment year 2001-02.
2. Imposition of a different tariff in the middle of the assessment year without proper machinery for computing tax liability.
3. Invocation of section 43 by the Department in cases following the alternate mode of taxation under section 7 of the Kerala General Sales Tax Act, 1963.

Analysis:

Issue 1: Application of amended provisions of the Kerala Finance Act, 2001 for the assessment year 2001-02
The case involved a partnership firm opting for an alternate method of taxation under section 7 of the Kerala General Sales Tax Act, 1963. The controversy arose when the Department sought to rectify the permission/order granted to the firm for payment of tax under section 7, with an enhanced rate per machine from July 23, 2001, through the Finance Act, 2001. The Division Bench held that the amendment in section 7(1)(b) of the Act was applicable for the assessment year 2001-02, even though there was no provision for making the assessment of compounded tax for a fraction or part of the year. The court emphasized the retrospective nature of laws and ruled in favor of the Department's application of the amended provisions.

Issue 2: Imposition of a different tariff in the middle of the assessment year without proper machinery for computing tax liability
The dealer contended that the alternate method of taxation should follow the law prevalent at the beginning of the assessment year, and there should be no bifurcation of the assessment year without an amendment to the machinery provision in the Act. The argument focused on the lack of clarity regarding the applicability of revised tax rates in the middle of the assessment year. The court considered the ambiguity of the term "assessment" and whether the Legislature could introduce revised tax rates mid-year, emphasizing the need for a proper legislative framework for such changes.

Issue 3: Invocation of section 43 by the Department in cases following the alternate mode of taxation under section 7
The court was required to determine whether section 43 could be invoked by the Department in cases following the alternate mode of taxation under section 7 of the Act. The judgment highlighted the importance of considering the scheme of the entire Act, particularly the differences between sections 5 and 7 in terms of tax assessment methodologies. The court directed the case to be remitted to the Kerala High Court for fresh consideration in accordance with law, keeping all contentions open and expressing no opinion on the merits of the case.

In conclusion, the Supreme Court set aside the previous judgment and restored the case for reevaluation, emphasizing the need for a comprehensive review of the legal aspects involved in the application of amended provisions, imposition of revised tax rates, and invocation of relevant sections under the Act.

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