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TMI Blog2010 (5) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is further made clear that if the petitioner has not filed any statutory appeals so far, the petitioner will be given liberty to file appeal against exhibit P3, within a period of one month from today along with petition seeking condonation of delay. The appellate authority shall consider the time spent before this court for getting the writ petition disposed as a valid ground for condonation of delay. Needless to say that the petitioner is at liberty to seek appropriate interim relief from the statutory authority if any such appeal is filed. - W.P. (C). No. 1876 of 2006 - - - Dated:- 4-5-2010 - ABDUL REHIM C.K., J. For the Appellant : C.K. Thanu Pillai For the Respondents : V.K. Shamsudheen, Government Pleader C.K. ABDUL REHIM J. The writ petition is filed with prayers for declaring section 17B of the Kerala General Sales Tax Act, 1963 ( the KGST Act ) inserted by the Kerala Finance Act, 2005 as unconstitutional and ultra vires. The petitioner is also seeking relief to quash exhibit P2 notice which is issued with proposal for assessment under section 17B of the KGST Act. When the writ petition came up for admission on January 20, 2006 this court made it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enacted into law and therefore the petitioner as well as similarly situated dealers have not collected tax during the last point of sale. According to the petitioner, during April to July 2004 he had purchased cement from M/s. Malabar Cements Ltd., Cherthala after paying 15 per cent sales tax and 15 per cent additional sales tax and also from M/s. N.T.P. Trade Centre (P) Ltd., Ettumanoor. Both are registered dealers and thus tax due at the first sale point was paid on the goods. The petitioner had produced exhibit P1 invoice issued by M/s. Malabar Cements Ltd., Cherthala in order to show that 15 per cent tax was paid at the point of first sale. But from exhibit P2 notice and exhibit P3 order of assessment it is evident that the petitioner had purchased cement from M/s. N.T.P. Trade Centre (P) Ltd., Ettumanoor for ₹ 1,31,40,932 by paying tax at 10 per cent under the Kerala General Sales Tax Act, 1963 (the KGST Act) on submitting declaration in form 25A, as provided under rule 32(13C) of the KGST Rules, declaring that the petitioner is a dealer of the goods at the point of last sale within the State. Exhibits R2(a) and R2(b) are copies of such declarations submitted by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d duration thereof. (1) A declared provision shall have the force of law on the 1st day of April, following the date on which the Bill containing it is introduced in the Legislative Assembly. (2) A declared provision contained in a Bill shall cease to have the force of law under the provisions of this Act, (a) When it comes into operation as an enactment with or without amendment; or (b) When the Government, in pursuance of a motion passed by the Legislative Assembly, directs, by notification in the Gazette that it shall cease to have the force of law; or (c) If it has not already ceased to have the force of law under clause (a) or clause (b), then on the expiry of one hundred and twenty days from the 1st day of April following the date on which the Bill containing it was introduced. 5. Certain refunds to be made when declaration ceases to have effect. (1) Where a declared provision comes into operation as an enactment in an amended form before the expiry of the period referred to in clause (c) of sub-section (2) of section 4, refunds shall be made of all taxes, duties, cesses, fees and other revenues collected which would not have been collected if the provision ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner claims that he has not collected tax at the point of last sale in view of the promise alleged to have been made by the first respondent, that the proposed amendment will not be enacted. His further contention is that he was not liable for collection and payment of five per cent tax because of the fact that the Finance Act, 2004 was introduced with retrospective effect from April 1, 2004 onwards. But it is the admitted case that the Finance Act was introduced only on July 28, 2004 and during the interregnum the petitioner had purchased cement from the first seller by paying rate of tax as introduced by the Finance Bill 2004 and also by making declaration to the effect that the petitioner is the last seller thereby declaring an implied obligation of collecting and paying tax at five per cent on the point of last sale. Therefore merely relying on the provision of Act 10 of 1985 which enables for raising a claim of refund, the petitioner could not escape from the liability from not making payment of tax during the interregnum period. This is especially because of the provisions contained in section 17B of the KGST Act which prescribe special method for making assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x is the taxable event attracting levy . It is contended that unless and until a charging section is there through which levy of tax is attracted which makes a dealer with an obligation to pay tax, and unless there being any rate of tax imposed through such charging section, the assessment through which computation of tax liability is ascertained, could not be adopted. He further relies on the decision of the honourable Supreme Court in State of Tamil Nadu v. Thirumagal Mills Ltd. [1972] 29 STC 290 (SC) as well as the decision in Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. AIR 1972 SC 2563 in order to canvass the above proposition. In the case at hand it is evident from the legal and factual position that, there existed a declared provision which was introduced through the Finance Bill, 2004 which fetched liability on the petitioner for payment of tax at five per cent on the last sale point from April 1, 2004 till July 27, 2004. Going by section 4 of Act 10 of 1985 the declared provision contained in the Bill had ceased to have force of law when the Finance Act was introduced on July 27, 2004. But contention of the petitioner is that by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority of law. The argument again is regarding lack of charging section by which tax liability is created which enable levy of tax. I think the discussions in the foregoing paragraph itself is answer to such contention and the decision in Govind Saran Ganga Saran v. Commissioner of Sales Tax [1985] 60 STC 1 (SC) cannot be considered as a direct bearing on the facts and issues involved in this case, which as discussed above, stands on a different footing. The learned Government Pleader also contended that in order to get rid of liability of tax, it is the burden of the petitioner to prove that he is not the last seller of the commodity within the State. It is pointed out that in view of the declarations submitted by the petitioner such proof cannot be introduced. He also pointed out that the allegation regarding non-collection of tax at the point of last sale cannot be made use as an excuse to deny the liability. Reliance is placed in this regard on the decision of the Supreme Court in State of Rajasthan v. J. K. Udaipur Udyog Ltd. [2004] 137 STC 438 (SC). From the discussions made as above, I am of the considered opinion that section 17B of the KGST Act introduced through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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