2012 (11) TMI 213 - HC - VAT and Sales Tax

Kerala General Sales Tax Act - realising the sales tax at two different stages, that is at the first point of sale and the last point of sale - petitioner purchased rubber from the third respondent - case of the petitioner that he suffered a huge loss and had to sell the commodity for a lesser price - petitioner was not a registered dealer at the time of transaction Held that - Inspite of granting an opportunity to file objection, the said opportunity was not availed of by the petitioner. It was accordingly that order was finalised by the assessing authority which is not assailable under any circumstances, either on facts or in law. Order was passed by the concerned authority as early as on May 3, 2004, whereas the petitioner chose to approach this court nearly after two years. On this count also, interference is not possible. Under such circumstances, this court finds that the writ petition is devoid of any merit and the same is dismissed accordingly. The petitioner is permitted to clear the outstanding liability by way of three equal monthly instalments - if any default is committed by the petitioner in satisfying the liability as above, it will be open for the respondents to proceed with further steps for realising the due amounts in a lump.

Issues:
1. Correctness and sustainability of sales tax proceedings at two different stages.
2. Imposition of penalties for tax evasion and non-registration under KGST Act.
3. Assessment and modification of tax liability by appellate authority.
4. Recomputation of tax liability based on actual figures from books of accounts.
5. Failure to challenge assessment leading to final order by assessing authority.
6. Dismissal of writ petition by the court and permission for payment in instalments.

Issue 1: Correctness and sustainability of sales tax proceedings at two different stages
The petitioner contested the sales tax levied at two different stages, i.e., 10% at the first point of sale and 2% at the last point of sale, as per the Fifth Schedule to the Kerala General Sales Tax Act. The petitioner argued that he suffered a loss and had to sell the commodity for a lesser price, leading to a tax payment of 12%. The appellate authority modified the assessment, directing the acceptance of the petitioner's books of accounts but upholding the tax levied at the second point of sale. The petitioner did not challenge this modification, and the final order was passed based on the appellate authority's decision.

Issue 2: Imposition of penalties for tax evasion and non-registration under KGST Act
The concerned authority imposed penalties on the petitioner for tax evasion and failure to register under the KGST Act. Initially, a penalty was imposed, but on revision, it was set aside. However, penalties were imposed again, including double the tax evaded and a penalty for not registering under the Act. The appellate authority modified the assessment but sustained the tax levied at the second point of sale. The petitioner did not challenge this modified assessment, leading to the final order by the assessing authority.

Issue 3: Assessment and modification of tax liability by appellate authority
The appellate authority modified the assessment by accepting the petitioner's books of accounts but upheld the tax liability at the second point of sale. The petitioner did not challenge this modification, and the final order was passed by the assessing authority based on the appellate authority's decision, which the petitioner later approached the court to challenge.

Issue 4: Recomputation of tax liability based on actual figures from books of accounts
The assessing authority recomputed the tax liability based on actual figures from the petitioner's books of accounts. Despite being served with a notice to file objections, the petitioner did not respond. The final order was passed by the assessing authority, accepting the figures from the books of accounts and fixing the total tax liability accordingly.

Issue 5: Failure to challenge assessment leading to final order by assessing authority
The petitioner did not challenge the modified assessment by the appellate authority, which led to the final order being passed by the assessing authority based on the appellate authority's decision. The court found that the petitioner's failure to challenge the assessment in a timely manner rendered the writ petition devoid of merit, resulting in its dismissal.

Issue 6: Dismissal of writ petition by the court and permission for payment in instalments
The court dismissed the writ petition, finding it lacking in merit due to the petitioner's failure to challenge the assessment promptly. However, the court permitted the petitioner to clear the outstanding liability in three equal monthly instalments, with recovery proceedings to be kept in abeyance temporarily. Default in payment would allow the respondents to proceed with further steps to realize the due amounts in a lump sum.

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