9911796707
TMI Blog2003 (12) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaken under the contract dated November 24, 1995 was executed over a period of three years. In as much as the petitioners have opted for composition scheme, the assessment in respect of the said assessment years were duly completed under section 17(6) accepting the composition of tax for the assessment years 1996-97. While concluding the assessment tax has been levied at Rs. 15,49,049 which has already been remitted by the petitioner. After assessment proceedings, petitioners were served with a notice dated November 10, 2000 under section 18-AA of the KST Act. It was observed that the petitioners have charged and collected tax of Rs. 15,49,050 from M/s. HPCL. As per section 18(2) of the K.S.T. Act as substituted by the Karnataka Taxation L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to respondents there was clear prohibition on the petitioner from collecting the tax in the light of an option for composition of tax under section 17(6) of the Act. Having negatived the same, according to the respondents, petitioner is answerable for forfeiture in terms of the Act. They have also filed a bill which clearly goes to show the collection by the petitioner. Respondents justify their stand in the matter. 3.. Parties are heard at great length. 4.. Learned Senior Counsel, Sri Chander Kumar invites my attention to the various provisions of the Act to contend that the petitioner has made over the tax already to the respondent. According to him a combined reading of the various provisions would show that there exists ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this sub-section shall be recoverable in the manner specified in section 13. (3) Notwithstanding anything contained in this Act, or in any other law, for the time being in force, any amount paid or payable by any dealer under sub-section (1), shall, to the extent it is not due as tax be forfeited to the State Government and be recovered from him and such payment or recovery shall discharge him of the liability to refund the amount to the person from whom it was collected. Section 18-AA refers to contravention of section 18. Section 18 reads as under: 18. Collection of tax by dealers. (1)(a) A person who is not a registered dealer liable to pay tax shall not collect any amount by way of tax or purporting to be by way of tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. It is seen from the material on record that notice was issued under section 18-AA on the ground that on verification of assessment records it is seen that the petitioner has collected tax at Rs. 15,49,050 and hence petitioner is liable for forfeiture under section 18-AA. Petitioner admittedly opted for composition of tax in terms of section 17(6) of the Act. That was omitted by Act No. 7 of 1997. However that was available for the relevant year. Therefore the sum and substance of the notice is that the petitioner having opted under section 17(6) has collected some amount by way of tax warranting forfeiture. Section 18-AA(1) says that a dealer who has collected any amount by way of tax or purporting to be by way of tax in contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no collection by way of tax in respect of sale of any goods on which no tax is payable by him under the provisions of this Act. Here again it is not the case of the department that collection has been made notwithstanding no tax. Section 18(1)(b) also gets out of picture. Section 18(2) provides for no collection by a dealer who has been permitted to pay by way of composition under sub-section (1) or subsection (8) of section 17, or a dealer who is exempted from sales tax by virtue of recognition granted under the provisions of this Act, shall not collect any amount by way of tax or purporting to be by way of tax on the sales or purchase of goods made during the period to which such composition or recognition applies. Section 18(2) alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 18 and section 18-AA. In these circumstances, accepting the argument of the petitioner, I deem it proper to set aside annexure G on the ground of want of jurisdiction. The other issues raised by the petitioner need not be considered in the light of this finding. It is made clear that the petitioner is not to seek refund of the amount already made over in the light of his objections in support of his submissions. In the result, this petition is allowed. Annexure G is set aside. Consequently the demand at annexure H is also set aside. No opinion is expressed with regard to the declaratory prayer as sought for in para 15 of the writ petition. I also deem it proper to observe that if any other avenues is available to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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