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TMI Blog2021 (10) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ appeals centres around proviso to Section 6(1) of the Act, read with Rule 12C of Kerala Value Added Tax Rules, 2005 (for short, 'the Rules'). 2. The circumstances set out in W.P.(C) No.1331/2014 are briefly adverted to and we are of the view that the circumstances are similar or no fact in issue is separately stated in other writ petitions, hence reference to the circumstances in one writ petition would be sufficient for disposing of all the appeals. W.P.(C) No.1331/2014 [W.A. No.241/2016] 2.1 The petitioner is a registered dealer and an assessee under the Act. The controversy arises from the return filed by the dealer for the Assessment Year 2008-09. The petitioner, inter alia, challenges Exts P7 and P7(a) orders made under Section 25 of the Act. The petitioner prays for a declaration that Rule 12C(1) of the Rules, is invalid, inoperative and unenforceable to the extent it stipulates for filing shipping documents or similar documents, to wit to claim concessional rate of tax for the sales made in favour of the Administrator of Lakshadweep Union Territory etc. The Assessing Officer, through the orders impugned in the writ petition, rejected the claim of dealer for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/contentions on both sides are not adverted to inasmuch as the judgment under appeal, in the batch of cases, was considered by a Division Bench of this Court in O.T.Rev. Nos.131 & 136/2019. Vide order dated 19.10.2020, the Division Bench noted that "We hence do not subscribe to the view expressed and the dictum laid down in Al Mahamood" i.e. judgment under appeal in the present batch of cases. The learned Judges while disposing of the O.T. Revisions were examining the legal contention raised by the dealer on the strength of dictum laid down in Al Mahamood, and, we respectfully observe, that the Division Bench has rightly considered the principle laid down in Al Mahamood v. Commercial Tax Officer (Judgment dated 04.11.2015 in W.P.(C) No.8022/2011) to the extent required to disposing of the O.T.Revs. The reasons recorded by the Division Bench since are useful and persuasive, we excerpt the operative portion hereunder: "5. We are unable to agree with the said proposition even if the sale is directly to the Lakshadweep Administration; which herein is not the case. The sale invites the concessional rate as per the proviso only if it is made to the Administrator, the Marketing Federat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Lakshadweep, Laccadive Cooperative marketing Federation, Kozhikode or the Lakshadweep Harbour Works or any registered dealer certified by the Administrator, Union Territory of Lakshadweep under the proviso to subsection (1) of section 6 shall obtain a declaration in Form No.42, duly signed and sealed by the buyer along with the copy of the shipping Bill, or similar document duly attested by the Port Authorities and file a copy each of the same along with the return filed under Rule 22. The originals shall be retained by the dealer and shall be provided on demand by any authority under the Act." (emphasis supplied) The proviso deals with the concessional rate of tax payable by the dealer under the Act for the sales made in favour of Administrator, Union Territory of Lakshadweep, Laccadive Co-operative Marketing Federation, Kozhikode or the Lakshadweep Harbour Works and registered dealers certified by the Administrator, Union Territory of Lakshadweep, the tax payable shall be 4%, subject to conditions as may be prescribed. The proviso, in terms, restricts the classes of buyers in whose favour the sale at concessional rate of tax could be made and concessional rate claimed. Apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f vagueness of language, the language is wholly interactable. The State legislature and the delegatee are having jurisdiction to make law/rules in regard to Value Added Tax. We refuse to sit as a super legislature to weigh the wisdom of requirements in proviso to Section 6(1) or Rule 12C. Courts normally refuse to examine the wisdom of expression of legislature/executive in tax, categories of taxes, rate of taxes, person who are brought under the tax purview etc. As it is said, words are the framework of concept or policy of Legislature/Government and the fact is that the concept or policy could change more quickly than the words. But, in our construction of Statute/Subordinate Legislation, we are concerned with the expression of Section/Rule, as the case may be. If the Government changes concept/policy, the expression of requirement in words would also change. But through our construction, it shall not appear that we change the meaning of words framed on concept or policy of the Government. The Legislature has a wide latitude in the matter of choice of persons, things and applicable requirements for extending concessional rate of tax. The Legislature/Government is the best Judge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the requirements prescribed by Rule 12C. In a case of sale and purchase covered by Section 6(1) proviso, the buyer is purchasing the goods at a concessional rate of tax, the buyer; whether it could be Administrator, Union Territory of Lakshadweep, Laccadive Co-operative Marketing Federation, Kozhikode or the Lakshadweep Harbour Works and registered dealers certified by the Administrator, Union Territory of Lakshadweep; having purchased the goods at concessional rate of tax cannot be allowed to wash off its hands by stating that it is impossible or difficult to produce shipping bills or similar documents duly attested by the port authorities evidencing shipment of the consignment. These are matters of record and the evidence, either in the form of shipping bills or similar documents duly attested by the port authorities, ought to be made available by the buyer to the seller/dealer. 6.4 Hence, for the said purpose we grant liberty to dealers, in these cases, to represent to the Administrator, Union Territory of Lakshadweep or the buyer under respective invoices, by enclosing a copy of this judgment to furnish copies of shipping bills or similar documents duly attested by port a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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