2021 (10) TMI 888 - HC - VAT and Sales Tax

Levy of KST Act and KVAT Act on Liquor - right for disallowing the ITC claimed by the petitioner - tax can be levied on the entire sales turnover or not - eligibility for deduction under 3 2 f of the KVAT Rules - levy of KVAT on the Value Addition or on the entire sales turnover - eligibility for tax deduction as per Rule-3 of the KST Rules - levy of entire sale value/total turnover and not on the value addition/taxable turnover - validity of conformation of order of the appellate authority and audit authority - violation of principles of natural justice - applicability of notification published in the Departmental Website - HELD THAT - Rule 3 of the Rules deals with determination of turnover. As per Rule 3(1), the total turnover of a dealer has to be determined as set out in clauses (a) to (g) with explanations thereof. Sub-Rule (2) of Rule 3 has to be read conjointly with sub-Rule 3(1) since the taxable turnover has to be determined by allowing deductions from the total turnover. Thus it cannot be gainsaid that Rule 3(2)(f) relates to the dealer where the exempted goods under section 5 of the KVAT Act are sold and such amounts are liable for deduction. Admittedly, liquor is not exempted under section 5 of the KVAT Act in the hands of the assessee herein. There is no cavil with respect to the legal principle enunciated by the Hon ble Apex Court in the Judgment of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS, 2015 (8) TMI 749 - SUPREME COURT regarding the speech made by the Hon ble Finance Minister in moving the Bill would be significant in interpreting the provision. But the input tax credit has to be determined as per section 10 of the KVAT Act. There was no bar for the assessee to collect the output tax in its entirety by its buyers. Giving interpretation of the said Rules vis- -vis the exemption provision Section 4 of the Act, has ruled that when a registered dealer sells to another registered dealer and the first registered dealer is exempted from payment of sales tax, the sale by the second registered dealer cannot be deemed to be sale at the first point and he cannot be subjected to sales tax. The crux of the controversy therein, relates to levy of single point tax, being at the first point of sale. With great respect, this judgment would be of no assistance to the assessee in the case on hand where the input tax credit has to be determined in terms of Section 10 of the KVAT Act. The substantial questions of law is answered in favour of the Revenue and against the assessee - revision petition is dismissed.

Issues Involved:
1. Taxability of liquor under KST Act and KVAT Act.
2. Disallowance of Input Tax Credit (ITC).
3. Levy of tax on entire sales turnover.
4. Eligibility for deduction under Rule 3(2)(f) of KVAT Rules.
5. Basis of KVAT levy - Value Addition vs. Entire Sales Turnover.
6. Eligibility for tax deduction as per Rule 3 of KST Rules.
7. Levy of tax on entire sale value vs. value addition/taxable turnover.
8. Confirmation of appellate authority and audit authority orders.
9. Violation of principles of natural justice.
10. Reliance on departmental notification.
11. Overlooking of a prior judgment in a similar case.

Detailed Analysis:

1. Taxability of Liquor:
The Tribunal upheld that liquor could be taxed under both the KST Act and KVAT Act. The tax on liquor was levied at 5.5% with effect from 01.03.2014 as per Entry 59A in the Third Schedule of the KVAT Act.

2. Disallowance of ITC:
The Tribunal disallowed the ITC claimed by the petitioner, noting that the petitioner did not pay any input tax on purchases from Karnataka State Beverages Corporation Limited (KSBCL), which was exempt from tax under the KVAT Act.

3. Levy of Tax on Entire Sales Turnover:
The Tribunal concluded that tax could be levied on the entire sales turnover. The petitioner argued that tax should only be levied on value addition, but the Tribunal rejected this, stating that in the absence of input tax, the petitioner could not claim ITC.

4. Eligibility for Deduction under Rule 3(2)(f):
The Tribunal found that Rule 3(2)(f) of the KVAT Rules was not applicable to the petitioner. The rule applies where goods exempt under Section 5 of the KVAT Act are sold, which was not the case for the petitioner as liquor was not exempt in their hands.

5. Basis of KVAT Levy - Value Addition vs. Entire Sales Turnover:
The Tribunal held that KVAT should be levied on the entire sales turnover, not just on value addition, due to the absence of input tax credit for the petitioner.

6. Eligibility for Tax Deduction as per Rule 3 of KST Rules:
The Tribunal did not find merit in the petitioner’s argument for tax deduction under Rule 3 of the KST Rules, as the petitioner was not eligible for such deductions.

7. Levy of Tax on Entire Sale Value vs. Value Addition/Taxable Turnover:
The Tribunal confirmed that tax should be levied on the entire sale value/total turnover, not just on the value addition or taxable turnover, in line with the KVAT Act provisions and relevant notifications.

8. Confirmation of Appellate Authority and Audit Authority Orders:
The Tribunal upheld the orders of the appellate authority and audit authority, finding no grounds to overturn their decisions.

9. Violation of Principles of Natural Justice:
The Tribunal found no violation of the principles of natural justice in the proceedings against the petitioner.

10. Reliance on Departmental Notification:
The Tribunal dismissed the petitioner’s reliance on a departmental notification, stating that the petitioner’s interpretation was incorrect and not supported by the legal provisions.

11. Overlooking of Prior Judgment:
The Tribunal did not find the prior judgment in M. Madhav Gowda v. State of Karnataka applicable to the petitioner’s case, as the circumstances and legal issues were different.

Conclusion:
The High Court dismissed the revision petition, affirming the Tribunal’s decision on all counts. The court held that the petitioner was liable to pay tax on the entire sales turnover and was not entitled to ITC or deductions under the KVAT Act and Rules. The court found no merit in the petitioner’s arguments and upheld the legality of the tax levied on liquor sales.

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