Kerala High Court
Kalyan Jewellers Kollam And Erode vs Asst.Commissioner (Assessment)
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939
WP(C).No. 36744 of 2016 (P)
----------------------------
PETITIONER :
--------------------
KALYAN JEWELLERS KOLLAM AND ERODE,
BUILDING NO.M.C.17/3740, 3750 AND 3751,
ZAIN TOWER, WARD NO.18, BEACH ROAD, KOLLAM,
REPRESENTED BY ITS DIRECTOR SRI.SAJAY RAGHURAMAN.
BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM)
RESPONDENT(S):
---------------------------
1. ASST.COMMISSIONER (ASSESSMENT),
COMMERCIAL TAXES, SPECIAL CIRCLE,
ASRAMOM, KOLLAM, PIN: 691 002.
2. COMMISSIONER OF COMMERCIAL TAXES,
KERALA, TAX TOWERS, KARAMANA,
THIRUVANANTHAPURAM -695 002.
3. STATE OF KERALA,
REPRESENTED BY THE ADDL.CHIEF SECRETARY TO GOVT.,
TAXES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001
R1 TO R3 BY GOVERNMENT PLEADER SRI.C.E.UNNIKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-08-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).No. 36744 of 2016 (P)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
--------------------------------------
P1 COPY OF ORDER DATED 13/1/2014/16-1-2014 ISSUED BY THE
1ST RESPONDENT FOR THE YEAR 2013-14
P2 COPY OF ANNUAL RETURN IN FORM 10DA IN RESPECT OF JEWELRY
P2(A) COPY OF ANNUAL RETURN IN FORM 10 IN RESPECT OF GOODS
EXT.P3 COPY OF NOTICE DATED 5/11/2016 ISSUED BY THE 1ST RESPONDENT
EXT.P4 COPY OF CIRCULAR NO.42/06 DATED 27/11/2006 ISSUED BY THE
2ND RESPONDENT
EXT.P4(A) COPY OF CIRCULARS NO.38/08 18/9/2008
EXT.P5 COPY OF CIRCULAR NO.5/2014 DATED 11/2/2014 ISSUED BY THE 2ND
RESPONDENT
RESPONDENT(S)' EXHIBITS: NIL
-----------------------------------------
/TRUE COPY/
P.A.TO JUDGE
sts
A.K.JAYASANKARAN NAMBIAR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.36744 of 2016
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 3rd day of August, 2017
JUDGMENT
The petitioner in this writ petition is a dealer in gold ornaments, who had opted for payment of tax on compounding basis under Section 8(f) of the Kerala Value Added Tax Act [hereinafter referred to as the "KVAT Act']. For the assessment years 2013-14 onwards, the Assessing Authorities, while completing the assessments pertaining to the petitioners, took a stand that insofar as the tax payable at the concessional rate under Section 8(f) of the KVAT Act is in lieu of tax on sale, and not in lieu of purchase tax under Section 6(2) of the KVAT Act, the said tax under Section 6(2) would be payable by the dealers on regular basis, and assessed under a regular assessment. In this writ petition, the pre-assessment notice issued to the petitioner by the adjudicating authority under the KVAT Act, are called in question, to the extent, they propose the levy of purchase tax under Section 6 (2), and imposition of a consequential penalty, on the ground that the payments of tax on compounded basis under Section 8(f) of the KVAT Act, will not exonerate the dealer from the liability to purchase tax under Section 6(2) of the KVAT Act.
2. During the pendency of this writ petition, the Kerala W.P.(c).No.36744 of 2016 : 2 : Finance Act, 2017, was enacted with effect from 1.4.2017. Through the said Act, Section 6(2) of the KVAT Act was amended by inserting the following proviso to Section 6(2)(a), namely, "provided that notwithstanding anything contained in clause (f) of Section 8, a dealer paying compounded tax for the goods mentioned in that clause, shall not be liable to pay tax under this sub section on such goods with effect from 1st April, 2013".
The amendment aforementioned has the effect of clarifying that, dealers paying tax on compounded basis under Section 8(f), need not pay tax under Section 6(2) of the KVAT Act, on the goods in question, with effect from 1.4.2013. In view of the amendment with effect from 1.4.2013, this writ petition is allowed, by quashing the impugned notice to the extent they propose an assessment to purchase tax. The respondents shall do the needful in finalising the assessments in relation to the petitioner on the basis of the observations in this judgment.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sm/