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TMI Blog2019 (9) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... gal precedents. In George Thomas [ 2011 (12) TMI 728 - KERALA HIGH COURT ] relying on Joy Alukkas Traders [ 2009 (11) TMI 960 - KERALA HIGH COURT ] it is held that the powers vested under Section 19 (1) 35 of the KGST Act (which are in pari materia with Section 25 and 56 of the KVAT Act) are one and same in nature. But considering the rulings cited on behalf of the assessee, including Koothattukulam Liquors [2014 (3) TMI 782 - Supreme Court] , Bhima Jewellers [ 2014 (10) TMI 411 - SUPREME COURT] and other judgments, there is a reiteration of the legal principle that the option for compounding once accepted creates. Concluded contract which cannot be rescinded by one. of the parties or annulled through a re-opening of the assessment conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. State of Madras ((1975) 35 STC 24 (SC)], to hold that 'Bus body' built on chassis supplied by the customer is a sale of goods, which will attract payment of tax under Entry 94 of the 1st Schedule of the Kerala General Sales Tax Act (KGST Act, for short). The Assessing Authority found that the assessee was not entitled for making payment of tax at the compounded rate, and therefore the assessments already completed were re-opened, .by invoking powers vested under Section 25(1) of the KVAT Act. 3. In the first appeals filed by the assessee before the Assistant Commissioner (Appeals), the revised assessments were found to be unsustainable, based on an observation made that the procedure for assessment initiated under Section KVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be sustained. In these revision petitions, a question of law is seen framed as to whether the judgment in State of Kerala v. Muhammed Ali A.M. (supra) requires reconsideration to decide whether a proceedings under Section 25 of KVAT Act can be initiated without cancelling the permission granted under Section 8 of the KVAT Act. 6. Learned Government pleader appearing for the State/revision petitioner placed reliance on a judgment of a Division Bench of this Court in S.T. Rev. No.92 of 2011, dated 15.12.2011 (State of Kerala v. George Thomas). Referring to identical provision as that of Section 25 of the KVAT Act contained in Section 19(1) of the KGST Act, which enables re-opening of the assessment; -it & vasheld that there is no differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t discussed based on the question whether the permission for •compounding will create a concluded contract or not. Further argument is that, the re- opening of a completed assessment under the compounding scheme can be possible only to the extent of the amount or quantum of tax payable under the scheme and not by disallowing payment of. the tax at the compounded rater which is already permitted. 8. Learned counsel had placed heavy reliance on a decision of the Hon'ble Supreme Court in Koothattukulam Liquors v. Deputy Commissioner of Sales Tax [(2014) 72 VST 353 (SC)] wherein it is held that, payment of tax at the compounded rate is on the basis of a bilateral agreement between the parties, for which the dealer is obliged to execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an option is exercised and accepted by the concerned authority, it is no longer open to the dealer to request for a regular assessment as envisaged under Section 5 or 5A of the KGST Act. Therefore it cannot be said that, when a dealer is assessed under the compounding scheme as envisaged under Section 7 of the Act, 'is also being assessed under the regular procedure of assessment, and has to be made liable to pay the additional sales tax. 10. Learned counsel for the respondent had placed further reliance on another decision of a Division Bench of this Court in M/S. Zodiac Regency v. Commissioner of Commercial Taxes and another (W.A. No.746 of 2011 dated 23.6.2011). It is held therein that, when a compounding application is submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the KVAT Act prescribes a procedure which render all the Characteristics of a concluded contract by virtue of the permission granted for compounding. Question arises whether the Assessing Officer can revoke the permission by exercising any of the powers vested on him? of course, under Section 66 of the KVAT Act the Assessing Officer is vested with power to revoke or rectify any orders passed by him. So also under Section 56 of the KVAT Act the Deputy commissioner is vested with powers to revise any orders passed by any subordinate authority. The provisions under Section 25 of the KVAT Act enables the Assessing Officer to re-open any assessment completed, for the reasons mentioned therein. Can that power be exercised to re-open an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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