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TMI Blog1991 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the cooked food and beverages sold in his hotel are not to be brought under the taxing net. While assessing the petitioner for the year 1987-88 on best of judgment basis, the authority proposed to assess under section 5A of the Kerala General Sales Tax Act. After overruling the objections raised by the petitioner, the first respondent completed the assessment by exhibit P1 order fixing the total taxable turnover at Rs. 16,63,940. Rs. 13,53,531 was fixed as turnover taxable under section 5A of the Act. The total tax, additional tax and surcharge payable on the purchase turnover of Rs. 13,53,531 comes to Rs. 90,642. Once the turnover alleged to be exigible to tax under section 5A and the tax computed thereon is deleted, it is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that section 5A cannot be enforced and the order of assessment made against the petitioner is to be declared as null and void. 5.. For a proper understanding of section 5A, I read clause (1) of that section: "Every dealer who, in the course of his business, purchases from a registered dealer or from any other person any goods, the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable under sub-sections (1), (2), (3), (4) or (5) of section 5, and either,- (a) consumes such goods in the manufacture of other goods for sale or otherwise; or (b) uses or disposes of such goods in any manner other than by way of sale in the State; or (c) dispatches them to any place outside the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 16(1) of the Kerala General Sales Tax Act states that tax under the Act shall be assessed, levied and collected in such manner as may be prescribed. Prescription can only be by rules. Rule 18 deals with the manner in which annual return and final assessment are to be made. Clause (1) of rule 18 enjoins every dealer liable to pay tax under the Act, whose total turnover for the year is not less than the minimum specified in section 5 or section 5A to file return in form 8 showing the total turnover and taxable turnover. This provision makes it clear that an assessee has to file returns giving the turnover falling under section 5A of the Act. When such a return is filed, the assessing authority has to proceed with the assessment on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Sales Tax Act. 6.. Petitioner has not advanced any argument questioning the quantum of turnover under section 5A of the Act. In other words he has no case that Rs. 13,53,531 found to be the taxable turnover under section 5A is erroneous or incorrect. His only argument was that no tax can be imposed invoking section 5A of the Act. 7.. The assessment made on the petitioner for the turnover under section 5A is valid and it calls for no interference. I find no merit in this original petition. It is accordingly dismissed. Issue photo copy of the judgment to the parties on usual terms. The petitioners preferred writ appeals against the decision of K. Sreedharan, J. M/s. Jose Joseph and A.K. Jose, for the petitioner. JUDGMENT The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come up in writ appeal against the judgment of the learned single Judge dated August 8, 1991. 2.. We heard counsel for the appellant Mr. Jose Joseph. In the light of the decision of the Supreme Court in Kandaswami's case [1975] 36 STC 191, it is too late in the day to contend that section 5A of the Act is illegal and ultra vires the Constitution. The matter was considered again in detail by a Bench of this Court in Hill Produce Corporation v. State of Kerala* [1991] 1 KLT SN 50, Case No. 70 judgment dated November 19, 1990. The Bench upheld the decision of a learned single Judge reported in Hill Produce Corporation v. State of Kerala [1991] 80 STC 444 (Ker); [1990] 2 KLT 436. In the light of the above decisions the plea that section 5A of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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