2003 (2) TMI 452 - HC - VAT and Sales Tax

Summary

Issues:
Levy of penal interest under section 23(3)/23(3A) of the Kerala General Sales Tax Act, 1963 for incorrect disclosure of tax rate in the return.

Analysis:
The judgment of the High Court of Kerala addressed the issue of whether penal interest could be imposed under section 23(3)/23(3A) of the Kerala General Sales Tax Act, 1963 when the assessee did not disclose the correct tax rate in the return. The assessee, a dealer in cattle feeds, had filed returns for the assessment year 1998-99 showing a tax rate of 3 percent instead of the correct rate of 4 percent. The assessing authority later levied penal interest of Rs. 9,926, which was initially set aside by the Appellate Assistant Commissioner but reinstated on appeal by the State.

The Court noted that the rate of tax for cattle feeds during the relevant year was indeed 4 percent, and the assessee had paid the tax accordingly. The dispute centered on the levy of penal interest. The Sales Tax Officer did not specify the provisions under which the interest was charged, but the Tribunal upheld the levy under section 23(3A) of the Act. However, the Court referred to a Supreme Court decision in Maruti Wire Industries Pvt. Ltd. v. Sales Tax Officer, which clarified that the liability to pay sales tax arises either upon self-assessment or upon an assessment order being made.

The Court also highlighted the importance of the return actually filed by the assessee, as emphasized in previous legal opinions. It was emphasized that the tax due should be based on the return filed by the assessee, not on a hypothetical return that should have been filed. In this case, the assessee had filed a return showing a 3 percent tax rate, which constituted self-assessment. The Court explained that if the assessing authority disagreed with this self-assessment, they should have issued an order demanding the correct tax amount, and penal interest would only be applicable if the tax demanded was not paid within the stipulated time.

The Tribunal had sustained the levy of interest under section 23(3A) of the Act, which deals with situations where turnover is not included in the return or has escaped assessment. However, the Court found that in the present case, there was no failure to include turnover or escapement of turnover; rather, it was a case of incorrect tax rate disclosure. Therefore, the Court concluded that section 23(3A) was not applicable, and the levy of interest was not justified. The Court set aside the orders of the appellate authorities and directed the assessing authority to remove the penal interest of Rs. 9,926 from the assessment order.

In conclusion, the Court allowed the revision petition, dismissed the related order, and directed the modification of the assessment to exclude the penal interest imposed.