9911796707
TMI Blog1998 (6) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... g items of goods to the University of Kerala: Rs. 1. Jute twine 5,000 balls 9,562.50 2. White cover 5 lakhs 56,160.00 3. Colour cover 14 lakhs 1,50,416.00 Total 2,16,138.50 The petitioner had collected sales tax in respect of all the three items. Based on the said bill, the first respondent verified the form 9 return filed by the petitioner for March, 1986 and it was found that the petitioner has shown only a sum of Rs. 56,160 as taxable sale for the month of March while the total taxable sale in the above bill was Rs. 2,16,138.50. It was noted from the said sale bill that the petitioner had collected a sum of Rs. 20,309.45 by way of sales tax and additional sales tax. The first respondent then called for the books of accounts for the year 1985-86 including the kurippu book, sale bills for March, 1986 and copies of supply bills from Sl. Nos. 1 to 86 for verification. It is the case of the first respondent that though notices for the said purpose were issued on October 24, 1991, November 6, 1991, December 4, 1991, December 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Kerala as per bill dated March 7, 1986 have been duly accounted in their day book and ledger for the year 1985-86 and the turnover has been correctly included in the return filed for the month of March, 1986. It is stated that the sales of items 1 and 2 are recorded as such and sale under item 3 is included in the total non-taxable turnover of Rs. 1,72,333.84 in the ledger at page 154. The petitioner further mentioned that out of the three items, jute twine and white cover were purchased from outside the State and colour cover was purchased from a registered dealer within the State. It is stated that they have wrongly collected sales tax on the entire sales under the impression that colour cover were also purchased from outside the State. It is further stated that subsequent to the sale, they noticed that the turnover involved in the sale of colour cover amounting to Rs. 1,50,416 is exempt from tax at their hands and so they included the amount in exempted turnover both in the accounts and in the return. It is also stated that the tax collected on the sale of jute twine and white cover was duly remitted to Government along with the tax due on other sales in the month of Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the day book for 1985-86 and that on the dates of inspection conducted on August 19, 1985 and December 17, 1985 also the dealer has produced only kurippu book for verification. The day book produced later with the entries of the above sale amount as non-taxable sales, it is stated, was only a newly cooked up one and it was only an afterthought of the dealer. It is also stated that the dealer has not cared to produce the relevant records such as sale bills required for verification. The sale bill, it is stated, was issued by the dealer with a deliberate attempt to defeat the process of verification and thereby prolonged the payment of sales tax and additional sales tax collected from the University of Kerala which is an offence punishable under section 45A of the Act. The contention of the petitioner that they had produced all the books of accounts and records for the year 1985-86 for verification was denied. It is stated that the books of accounts made available for inspection before the inspecting officers on August 19, 1985 and December 17, 1985 are mainly kurippu books signed by them. The averment of the petitioner that the entire sales effected to the University of Kerala as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over amounting to Rs. 1,50,416 covered by the sale bill dated March 7, 1986 the petitioner was not obliged to include the said amount in the taxable turnover of the petitioner for the month of March, 1986 in spite of the collection of sales tax on the said amount and that the failure to include the same in the taxable turnover is of no consequence. He also submitted that the offence, if at all, is only technical or venial. The learned counsel submitted that none of the respondents have got a case that the sales turnover of colour cover by the petitioner is exigible to tax at the hands of the petitioner or that the petitioner has not refunded the tax collected from the university. The learned counsel accordingly submitted that there is no violation of any of the provisions of section 45A of the Act warranting imposition of penalty under the said section. 7.. The learned Government Pleader appearing for the respondents submitted that the petitioner by using separate sets of bill had collected tax even on nontaxable sales and had appropriated the same without being making it over to the Government. The learned Government Pleader further submitted that in spite of the defect being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f colour cover included as item No. 3 in the sale bill dated March 7, 1986 is non-taxable goods since it was purchased from a local dealer inside the State. The petitioner had also stated that tax was collected from the University of Kerala on the said amount also by mistake on the assumption that the said goods were purchased by the petitioner from outside the State and that when the defect was noticed, the sale price of colour cover was included in the non-taxable turnover both in the accounts and in the return. Under section 22(1) of the Kerala General Sales Tax Act, a registered dealer is permitted to collect the tax payable by him on the sale of any goods from the person to whom he sells the goods and pay over the same to the Government in the manner prescribed. This is subject to the provisions of sub-section (2). Under sub-section (2), no registered dealer shall collect any sum purporting to be by way of tax on the sale of any goods in respect of which he is not liable to pay tax or at a rate exceeding the rate at which he is liable to pay tax. In the instant case, since the purchase of colour cover was made from within the State and since colour cover is taxable only at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder, for the contravention of which no express provision for payment of penalty or for punishment is made by this Act; such authority or officer may direct that such person shall pay, by way of penalty, an amount not exceeding twice the amount of sales tax or other amount evaded or sought to be evaded where it is practicable to quantify the evasion or an amount not exceeding five thousand rupees in any other case. Explanation I.-The burden of proving that any person is not liable to the penalty under this section shall be on such person. Explanation II.-For the purposes of this sub-section the expression assessing authority includes any officer not below the rank of Sales Tax Officer specified by the Government in this behalf by notification in the Gazette. The case of the first respondent, as could be seen from exhibit P1 notice, is that the petitioner had submitted untrue and incorrect return falling under clause (d) above. The question as to whether the petitioner has submitted an untrue or incorrect return will depend upon the question as to whether tax is exigible on the sales turnover of colour cover. As already stated, the respondents have no case that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
