9911796707
TMI Blog1999 (9) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the turnover tax already paid shall not be refunded and the third prayer was to quash Ext.P4 assessment order to the extent it levied turnover tax collection, turnover tax on goods received by way of branch transfer and forfeiture of turnover tax paid by mistake of law and for other reliefs. 2. Ext.P1 notification is dated 29th October, 1992. It is a notification issued under Sec. 10 of the Kerala General Sales tax Act. By that notification, the government of Kerala made an exemption in respect of turnover tax payable on the turnover at the first point of sale in the State by dealers coming under sub-clause (g) of clause 1 to sub-section (2A) of Sec. 5 of the above Act except on the turnover relating to goods received on consignment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 1992, whereas Ext.P1 is dated 29-10-1992. So, from 1-4-1992 upto 29-10-1992 all the dealers including those who were exempted under Ext.P1, were paying turnover tax. Thus, the petitioner cannot claim any refund of tax prior to 29-10-1992. 4. The question is whether the petitioner is entitled to refund of the turnover tax paid after the date of Ext.P1 notification. The learned single Judge declined to grant this prayer on the ground that Ext.P2 notification applies to all dealers without any discrimination. Further, the learned Judge observed that all those who had paid tax, might have taken into account the said payment while fixing the price structure of the commodity dealt with by them. So far as the finding of the learned single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act as contemplated in proposition (i) above or in a suit or writ petition in the situations contemplated by proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/ decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on...." Thus, the petitioner/appellant is entitled to refund, if he has shown that he has passed on the burden of the duty to a third person. In para 4 of the Original Petition, it is stated thus: "Respondents are not authorised to forfeit the turnover tax paid by the petitioner as the same is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1st respondent from the assessment records." The first respondent has not denied this. In view of the above facts, we are of the view that the petitioner/appellant is entitled to refund of the turnover tax paid after 29-10-1992 for the assessment 1992-93. We are fortified by the view taken in the decision of the Supreme Court in Deputy Commr. Andaman v. Consumer Co-op. Stores Ltd.- AIR 1999 SC 696. Learned Government Pleader relied on the decision reported in M/s. Raj Sheel v. Commercial Tax Officer, Hyderabad - AIR 1999 SC 1580. That was a case where sales tax was realised from the customers and it was included in the turnover of the applicant. Collections made from the customers were paid to the State. When the question of refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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