9911796707
TMI Blog2007 (12) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... erala and sold to the brand name holder for marketing in the State. The first respondent found that as against the normal margin of 15 per cent in the nature of wholesale trade of the product, the brand name holder resold the item after purchase from petitioner at a gross profit of 55.05 per cent. The first respondent, therefore, rejected petitioner's sales consideration and made assessment under section 19B of the KGST Act. The turnover adopted for first sale by petitioner is 85 per cent of the sales turnover of the brand name holder, i.e., by providing a margin of 15 per cent towards gross profit. In fact, the original assessment orders were subjected to appeals and the impugned orders are issued after remand by the appellate authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in S.T. Rev. No. 227 of 2003 dated January 5, 2004 wherein a Division Bench of this court has held that in the case of tax evasion, the assessing officer will be entitled to make assessment under section 19B, and submits that the petitioner's case is clearly covered by the said decision. The first case, above referred, relied on by the petitioner pertains to manufacture and sale of product by a dealer in Kerala to the brand name holder, which is also within Kerala. So far as the second decision of this court is concerned, it has nothing to do with the product with a brand name. The case herein is one of a clear scheme of evasion of tax practised by the brand name holder with the assistance of the petitioner because the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Income-tax v. Sri Meenakshi Mills Ltd. reported in [1967] 63 ITR 609 and McDowell & Company Limited v. Commercial Tax Officer reported in [1985] 59 STC 277 (SC); [1985] 154 ITR 148 held that courts should not approve colourable devices or dubious methods adopted by parties for evading payment of tax legitimately due to the State. These decisions were considered by the Division Bench in the unreported decision above referred. In fact, I am of the view that this is a fit case for considering penalty on the petitioner as well as on the brand name holder for attempting evasion of tax. However, on account of the officer's diligence, evasion has not taken place because he made assessment by invoking section 19B. In the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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