9911796707
TMI Blog2008 (11) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... as delivered by S.B. SINHA J. - Leave granted. The first respondent is a dealer in bullion gold. It entered into transactions of purchase of gold from the appellant herein during the period April 6, 1999 and December 10, 1999. The total transactions during the said period were for a sum of Rs. 42,37,48,518. Indisputably the rate of tax which was prevailing at the relevant time was one per cent. The amount of sales tax at the said rate was collected from respondent No. 1. The amount so collected, indisputably had been deposited with the sales tax authorities. On or about December 27, 1999 vide S.R.O. No. 1075/99 the rate of sales tax was reduced from one per cent to 0.5 per cent which was given a retrospective effect from April 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abovementioned S.R.O. amended the original notification in S.R.O. No. 1728 of 1993. According to the said original notification, tax, if any, collected at the higher rate shall be paid over to the Government and tax, if any, paid over to the Government shall not be refunded. So you may please inform your customer accordingly." The first respondent was communicated the same by the appellant in terms of its letter dated June 6, 2000 stating: "While referring to your representation on the subject-matter, it has been informed by our higher-ups that as per the letter from the Assistant Commissioner of Commercial Taxes, Calicut viz: 3301/ 1150/99-2000, it has been clarified that according to the GO., S.R.O No. 1728 of 1993 'any tax collected at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut expressing any opinion as to the merits of the case, this writ petition is disposed of as follows: 'In the event of the petitioner moving the Commissioner (Commercial Taxes), Government of Kerala, Thiruvananthapuram within a period of two months from today, the Commissioner shall consider the issue with notice to the petitioner and the first respondent and take appropriate action in accordance with law in the matter within another four months.' " An intra-court appeal was filed by the first respondent and a Division Bench of the High Court by reason of the impugned judgment dated November 7, 2006 allowed the said writ appeal opining: "When the Legislature or the Government had given that relief with retrospective effect, necessarily, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective. Mr. M.K. Sreegesh, learned counsel appearing on behalf of the first respondent, however, would submit that the notification should be construed keeping in view the objective it seeks to achieve as would appear from notification dated December 27, 1999. It was contended that the amendment had been brought into force with retrospective effect. The condition laid down therein must be held to have been repealed. Indisputably the gold in bulk quantity was sold by the bank within the State. Purchase was required to be effected at least worth Rs. 25 lakhs at a time. It was, however, felt that the intermediary dealers, who normally buy gold from the banks and primarily cater to the requirements of local gold- smith and jewellers, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax at a rate higher than specified. The Kerala General Sales Tax Act, 1963 also contains a provision for refund in section 44 thereof which reads as under: "Refunds.-(1) When an assessing authority finds, at the time of final assessment, that the dealer has paid tax in excess of what is due from him, it shall refund the excess to the dealer. (2) When the assessing authority receives an order from any appellate or revisional authority to make refund of tax or penalty paid by a dealer it shall effect the refund. (3) Notwithstanding anything contained in sub-sections (1) and (2), the assessing authority shall have power to adjust the amount due to be refunded under sub-section (1) or sub-section (2), towards the recovery of any amount due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... richment has any application as it is not the case of the respondent/State that the buyer has passed on the excess amount of tax collected by it to the purchasers. In view of the admitted fact that tax had been collected and paid for the period April 6, 1999 and December 10, 1999 at one per cent of the price which having been reduced from April 1, 1999 to 0.5 per cent, the State, in our opinion, is bound to refund the excess amount deposited with it. Furthermore the notification having been given a retrospective effect must be construed on the touchstone of the purpose and object it sought to achieve. The principle of purposive construction should be applied in a case of this nature to find out the object of the Act. When a statute cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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