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TMI Blog2022 (1) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and decided by this Court along with connected matters in W.A. No.1035/2006 vide judgment dated 05.12.2017. The revisions filed by the dealer were allowed and the revision filed by the State was dismissed, confirming the order of the Tribunal. Interest under the provisions of the KGST Act is automatic, becomes payable on the date on which return is filed, and hence no separate order demanding interest is necessary. Revision allowed. - ST.REV. NO. 53 OF 2010, 45 OF 2010, 47 OF 2010, 48 OF 2010, 49 OF 2010 - - - Dated:- 15-11-2021 - THE HONOURABLE MR.JUSTICE S.V.BHATTI AND THE HONOURABLE MR.JUSTICE BASANT BALAJI PETITIONER: SENIOR GOVERNMENT PLEADER V K SHAMSUDHEEN RESPONDENTS: SRI.P.BENNY THOMAS, SRI.KURYAN THOMAS, SRI.K.JOHN MATHAI AND SRI.E.K.NANDAKUMAR ORDER S.V. Bhatti, J. Heard Mr V K Shamsudheen, learned Senior Government Pleader for petitioner and Mr Kuryan Thomas learned counsel for the respondent. 2. Common questions of law and fact are presented for consideration in the batch of revisions. The parties are the State of Kerala/Revision petitioner and the Malayala Manorama Company Limited/dealer is the respondent. The details of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 determining the balance tax due from the dealer as ₹ 38,33,093/-. Thereafter, the assessing officer issued notice dated 18.08.2008 under Section 43 and received the reply dated 08.09.2008 from the dealer. Through Annexure-A1 order dated 15.09.2008, by giving credit to the amount deposited on 30.03.2007 amounting to ₹ 10 lakhs, the amount payable by the dealer has been determined at ₹ 34,08,057/-. The controversy that was taken up for adjudication by the dealer, both before the Deputy Commissioner (Appeals) and the Tribunal, is that the consideration and the treatment given to the amount deposited by the dealer are incorrect and illegal. The stand of Department is that the amount deposited by the dealer on 30.03.2007 is firstly credited to the interest due from dealer but not to tax due. 3.1 Per contra, the dealer resisted the adjustment, firstly, in interest account as illegal for the reason that the respective assessment orders do not stipulate interest for non-payment or delayed payment of tax. Therefore, the amount deposited by the dealer pursuant to the condition imposed by the appellate authority must be credited to the tax due and payable by the deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there cannot be any liability for interest for period prior to the amendment if turnover was fully returned. We are unable to accept this contention because the question whether there is failure on the part of the assessee to include. turnover in the return filed has to be considered with reference to the return itself, which is form No. 9 prescribed under the Rules. It is to be noted that dealer is required to give description and turnover of each goods, classification made with reference to entries in the Schedule to the Act, the point of sale and the rate of tax of taxable goods. There is a specific column provided in the return to declare the turnover on exempted goods. Therefore the dealer is expected to file return disclosing the entire turnover of all the goods and by bifurcating turnover between taxable and non-taxable and again classifying taxable goods at applicable rate on turnover of each such goods. Non-payment or short payment will arise on account of the dealer misclassifying taxable goods as non-taxable and can also happen on account of mis-classification of taxable goods at rates lower than the rates provided in the schedules to the Act. Therefore failure of incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of tax. We therefore overrule the judgment in P.K. DAMODRAN's case above referred and allow revision cases by reversing the orders of the Tribunal and by restoring the interest levied under Section 23(3A). However, counsel appearing for the respondents submitted that but for the favourable orders. issued by the Tribunal, though now found to be wrong by this Court, respondents. should have settled the liability towards interest under the Amnesty Scheme, that was prevalent upto 31.3.2009. We find force in this contention because had the Tribunal dismissed the appeals probably respondents would have settled the liability under the Amnesty Scheme. We therefore direct the assessing officer to grant amnesty benefit to the respondents reducing the interest in terms of the scheme and allow settlement of liability by demanding further interest at one per cent per month for the amnesty amount payable from the last date for payment under the amnesty scheme till date of payment. Respondents are directed to make application in this regard before the assessing officer within three weeks from the date of receipt of a copy of this judgment and the officer is directed to allow them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context does not permit or where the context requires otherwise, the meaning assigned to it in the said definition need not be applied. If we keep the above consideration in mind, it would be evident that the expression goods occurring in the second half of section 8(3)(b) cannot be taken to exclude newspapers from its purview. The context does not permit it. It could never have been included by Parliament. Before the said amendment, the position was the State could not levy tax on intra-State sale of newspapers; the Parliament could but it did not and entry 92A of List I bars the Parliament from imposing tax on inter-State sale of newspapers; as a result of the above provisions, while the newspapers were not paying any tax on their sale, they were enjoying the benefit of section 8(3)(b) read with section 8(1)(b) and paying tax only at 4 per cent on non-declared goods which they required for printing and publishing newspapers. Their position could not be worse after the amendment which would be the case if we accept the contention of the Revenue. In view of the above, the contention of the Revenue that the definition of goods should control the wording finished product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2008, adjusting against the interest due and payable by the dealer as on 30.03.2007. The principle involved in giving credit to the amount deposited by the dealer is that it is first adjusted against interest due or payable by the dealer and balance amount, if any, is credited to tax arrears. It is an undisputed circumstance that the original assessment order is dated 05.01.2007, the legality of the said order has been considered and decided by this Court along with connected matters in W.A. No.1035/2006 vide judgment dated 05.12.2017. The revisions filed by the dealer were allowed and the revision filed by the State was dismissed, confirming the order of the Tribunal. The tax due or eligible for refund needs to be substantially considered afresh by the Assessing Officer and orders passed strictly in terms of the judgment dated 05.12.2017 in W.A. No.1035/2006. 5.1 The findings of the Tribunal are set aside. The judgment of the Full Bench in Western India Cosmetic and Health is followed on the calculation or adjustment of amount deposited by the dealer. The said findings of the Appellate Tribunal are not sustainable in law on the following reasons: a) Interest under the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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