2011 (12) TMI 481 - HC - VAT and Sales Tax

Constitutional validity of section 17B of the Kerala General Sales Tax Act, 1963 challenged - Held that - Levy under section 17B for a specific period is to get over difficulties for assessment of dealers, who have followed the Finance Bill, 2004 for purchase and sale of goods. Thus those who have complied with the provisions of the Finance Bill, 2004, have not suffered any additional tax liability. Therefore, there is no retrospectivity as such for the above provision which was introduced only to provide levy and collection of tax during the period the Finance Bill, 2004 was operational, but not ultimately given effect while passing the Finance Act. Do not find any grievance or bona fides for the appellant to challenge the statutory provision. Further it is seen that even though the above provision is applicable to hundreds of cement dealers in the State no other person has approached this court challenging the statutory provision which only means that the provision was smoothly implemented in the State for all other dealers. Further along with cement all other 20 items are covered by section 17B and no other dealer has approached this court with any writ petition expressing any difficulty in the implementation of section 17B. Appeal dismissed.

Summary

Issues:
Challenge against constitutional validity of section 17B of the Kerala General Sales Tax Act, 1963.

Analysis:
The appellant, a registered dealer under the Act, challenged the constitutional validity of section 17B of the Kerala General Sales Tax Act, 1963. The appellant dealt with the purchase and sale of cement within the State, an item taxable at the point of first sale under the Act. The Finance Bill, 2004 proposed to shift "cement" and 20 other items from the First Schedule to the Fifth Schedule of the Act, imposing a two-point levy of tax. However, when the Finance Act, 2004 was passed, the proposal to shift items, including cement, was abandoned, retaining them in the First Schedule. Section 17B was introduced to address the difficulty faced by dealers who had complied with the proposals in the Finance Bill based on a notification issued under the Kerala Provisional Collection of Revenues Act, 1985. Section 17B mandated that dealers who purchased goods during a specific period and paid tax at specified rates should pay tax on resale as mentioned in the provision.

The appellant contended that since the Finance Bill, 2004 was not passed and cement remained in the First Schedule for the relevant period, tax was payable at the rate provided in the First Schedule. However, the appellant failed to demonstrate full compliance with the tax rates specified in the Finance Bill. Section 17B applied to dealers who purchased goods at lower tax rates as per the Finance Bill, ensuring no tax evasion by imposing a subsequent levy for differential tax during the Finance Bill's operational period. The court found no increase in tax rates due to the introduction of section 17B but rather a mechanism to facilitate tax assessment during the Finance Bill's effective period.

The appellant's argument against the retrospective effect of the Finance Act, 2005 introducing section 17B was dismissed by the court, emphasizing that the provision aimed to address assessment difficulties for dealers following the Finance Bill, 2004. The court noted that representations made by various organizations did not exempt dealers from complying with the Finance Bill's provisions. Despite the applicability of section 17B to numerous cement dealers in the State, no other party challenged the provision, indicating its smooth implementation. Therefore, the court found no merit in the appellant's challenge against section 17B and dismissed the writ appeal.