Apollo Tyres Ltd vs Asst.Commissioner(Assessement) on 20 March, 2007

[Cites 2, Cited by 4]

Kerala High Court

Apollo Tyres Ltd vs Asst.Commissioner(Assessement) on 20 March, 2007

Bench: C.N.Ramachandran Nair

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP No. 4400 of 2001(W)



1. APOLLO TYRES LTD
                      ...  Petitioner

                        Vs

1. ASST.COMMISSIONER(ASSESSEMENT)
                       ...       Respondent

                For Petitioner  :SRI.M.PATHROSE MATTHAI (SR.)

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR

 Dated :20/03/2007

 O R D E R
                     C.N.RAMACHANDRAN NAIR, J.

                      -----------------------------------

                         O.P. No. 4400 of 2001 W

                  -----------------------------------------

               Dated, this the 20th day of March, 2007


                                J U D G M E N T

Petitioner is challenging Ext.P1 order passed by the Assessing Authority demanding penal interest under Sec. 23(3) for the assessment year 1995-96. Penal interest pertains to short payment of tax applicable to non-inclusion of rubber cess in purchase turn over, when monthly returns were being filed by the petitioner, during the year 1995-96. The issue was covered by the full bench decision of this Court in MRF's case, wherein, this Court held that sales tax was not payable on rubber cess. However, the Supreme Court reversed the judgment of this Court vide judgment dated 19/12/1997. It is not known whether petitioner was also a party in the case before Supreme Court. In any case after Supreme Court declared the law on the subject, the same binds the petitioner as well as the department by virtue of operation of Article 141 of the Constitution of India. Therefore, even though the petitioner was not liable to include rubber cess as part of the turnover when sales tax monthly returns were filed, there is no justification for the failure of the petitioner in filing revised return after Supreme Court decision was published. Therefore, interest if O.P.No. 4400/2001

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any has to be considered under Sec. 23 (3)A of the KGST Act for default committed for non-payment of tax after Supreme Court declared the law. It is not known whether the Assessing Officer himself issued any provisional assessment and issued Form 14D prescribed under Rule 18(3) of the KGST Rules. In any case, Assessing Officer has not considered the relevant aspects stated above and conduct of the petitioner in regard to filing of revised return or payment of tax.

2. In the circumstance, this Original Petition is disposed of vacating Ext.P1 with a direction to the Assessing Officer to recompute interest liability, if any, payable by the petitioner under Sec. 23(3) or 23 (3)A after verifying the records, the decision of the Supreme Court, statutory provisions and after issuing notice to the petitioner and after hearing the petitioner within a period of three months from today.

This Original Petition is disposed of as above.

(C.N.RAMACHANDRAN NAIR, JUDGE.) jg

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