2009 (2) TMI 771 - HC - VAT and Sales Tax

Application for review filed by the Revenue under section 39(7) of the Kerala General Sales Tax Act, 1963 rejected - Held that - As find nothing irregular in the officer accepting the scheme of payment of tax at compounded rate offered by the assessee in the course of regular assessment, the scope for appeal is only limited to the assessee s challenge against modification of the tax payable for earlier year namely, 1998-99, we direct the assessing officer to reconsider the tax for the year 1998-99 which is one of the basis for determination of tax payable at compounded rate for 2000-01 and then rework interest by excluding liability for the differential amount for the period noted above and issue a revised order to the assessee. Fresh order should be passed after issuing a proposal to the respondent-assessee, calling for their objection and only after hearing the objections. If any issue survives with regard to determination of tax for 1998-99 for the purpose of payment of tax at compounded rate for 2000-01, the assessee is free to file appeal.

Issues involved:
- Revision filed by the State against the Tribunal's order rejecting a review application under section 39(7) of the Kerala General Sales Tax Act, 1963.
- Application for payment of tax at a compounded rate by a gold jewellery dealer.
- Discrepancy in tax payment noticed during assessment.
- Tribunal allowing the claim of the assessee in the second appeal.
- Review petition filed by the State against the Tribunal's decision.
- Consideration of new facts by the Tribunal.
- Assessment completion based on the compounding application.
- Entitlement of the assessee to back out from the offer to pay tax at a compounded rate.
- Scope for appeal limited to the modification of tax payable for the earlier year.
- Interest liability on the differential amount only after default arises.
- Decision to vacate the Tribunal's orders in the appeal and review application.

Detailed Analysis:
1. The revision was filed by the State against the Tribunal's rejection of a review application under section 39(7) of the Kerala General Sales Tax Act, 1963. The respondent-assessee, a gold jewellery dealer, applied for tax payment at a compounded rate. Despite remitting tax as per the compounding application, a discrepancy was noted during assessment regarding the tax payable for the preceding year, leading to a demand for differential tax. The Tribunal allowed the assessee's claim, prompting the State to file a review petition citing unconsidered facts. The Tribunal's failure to evaluate the impact of the pending compounding application and the assessee's consistent tax remittance as per the application raised concerns.

2. The Tribunal's dismissal of the review application was challenged by the State, arguing that the new facts presented were crucial and not previously considered. The Tribunal's oversight of the compounding application's validity and the assessee's adherence to it throughout the year were highlighted. The Tribunal's decision to reject the review without due consideration of the compounding application's effect was deemed erroneous. The Tribunal's failure to address the significance of the pending application and the assessee's continuous tax remittance based on it was a key point of contention.

3. The judgment emphasized that the assessee, by choosing to pay tax at a compounded rate, availed immunity from Departmental interference in business operations. The Tribunal's error in allowing the assessee to retract from the compounded rate offer after the assessment order's acceptance was highlighted. The assessing officer's acceptance of the compounding application during assessment was deemed appropriate, given the absence of a rejection and the assessee's consistent adherence to the application.

4. The decision clarified that interest on the differential amount could only be levied post-default, i.e., after the notice of assessment order. The judgment directed the assessing officer to reassess the tax for the preceding year, excluding interest for the default period until the notice's service. The revision was allowed, vacating the Tribunal's orders in the appeal and review application, affirming the justification of the assessment at a compounded rate.

5. The judgment concluded by instructing the assessing officer to reevaluate the tax for the earlier year and issue a revised order after hearing the respondent-assessee's objections. The assessee was granted the right to appeal if any issues persisted regarding the tax determination for the earlier year impacting the compounded rate for the subsequent year.

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