Kerala High Court
M/S. Jose Electrical Agencies vs State Of Kerala on 4 November, 2008
Bench: H.L.Dattu, A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 210 of 2005()
1. M/S. JOSE ELECTRICAL AGENCIES,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.E.P.GOVINDAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :04/11/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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S.T.Rev.No.210 OF 2005
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Dated this the 4th day of November, 2008
O R D E R
H.L.DATTU, C.J.
The order passed by the Kerala Sales Tax Appellate Tribunal, Additional Bench-I, Ernakulam in T.A.No.479/2004 dated 25.11.2004 is the subject matter of this revision petition.
(2) The relevant assessment year is 2000-01. The order of assessment pertains to the C.S.T assessment.
(3) The assessee is a dealer in electrical goods. It has purchased the electrical goods from a dealer outside the State by placing purchase orders. The goods were moved by the selling dealer as per the purchase order so placed, and while the goods were in transit, the assessee had effected transit sales and in the return filed for the assessment year in question, the assessee had claimed exemption from payment of tax under the provisions of the Central Sales Tax Act, 1956, ("C.S.T. Act" for short). The assessing authority has rejected the claim solely on the ground that, in the lorry receipts accompanying the goods it is shown that the consignor and the consignee are one and the same. The order so passed is confirmed both by the first appellate authority and the appellate tribunal. The appellate tribunal while rejecting 2 S.T.(Rev.)No.210/2005 the assessee's appeal has stated as under:-
"On perusal of the above Government notification by incorporating a new provision, i.e. Rule 11(B) the purchasing dealer who claims to have made a second or a subsequent sale by transfer of document of title to the goods, shall in respect of such claim furnished to the assessing authority photocopy of the consignee copy of the lorry receipts etc. In the instant case admittedly the appellant is not having such lorry receipt. by incorporation of the Rule 11(B) It is mandatory on the part of the appellant to produce the Lorry Receipt or Railway Receipt etc. In the absence of such a documents the claim of exemption on the part of the appellant is found meaningless and against the existing provision. When there is clear provision in the statute, the circular direction issued by the Commissionerate as per letter No.C1-68689/03/CT dt.19.12.03, cited by the learned counsel have no use in appellants case. Thus cumulatively considering the entire issue, we feel that the appellant has not produced sufficient document before the lower authorities to claim sale in transit. As per the document, the assessing authority found that entire goods under dispute were reached were the destination to the seller outside the Kerala. Therefore the assessments on the turnover under CST Act is also in accordance with the provisions of the law. Thus considering the entire issue we do not find any matter to interfere in the order passed by the lower authorities. Hence we confirmed it by dismissing the appeal filed by the assessee. 3 S.T.(Rev.)No.210/2005 (4) The Tribunal, to reject the assessee's appeal, has extracted in extenso Rule 11 B of the Rules which has been incorporated under the provisions of the Central Sales Tax Act (Kerala Rules), 1957. The said provision would indicate that, the assessee is required to produce the C Forms, E1 forms, lorry receipts, railway receipts, bill of lading bearing with endorsement, cash receipt of the purchaser etc. Merely because there was some clerical mistakes in the lorry receipts produced, the Tribunal affirms the view expressed by the first appellate authority and the assessing authority.
(5) At the time of hearing of this revision petition, the learned Government Advocate has produced before us the records maintained by the assessing authority. After careful perusal of the records, we are of the opinion that the approach of the assessing authority and the other authorities under the Act is hyper technical, only to deny the claim of the assessee for exemption from payment of tax under the C.S.T. Act. In fact the records would indicate that the assessee in order to sustain the claim for exemption from payment of tax under CST Act has produced all the documents as prescribed under the Rules.
However, in the lorry receipt produced there is some typographical error and the same should not have been taken note of so seriously to deny the exemption from payment of tax under CST Act, when the assessee has produced all the other documents which would justify its claim of sale in transit. In that view of the 4 S.T.(Rev.)No.210/2005 matter, in our opinion, it is difficult for us to sustain the orders passed by the Tribunal.
(6) Accordingly, we allow the revision by setting aside the impugned orders passed for the assessment year 2000-01. The assessing authority is now directed to redo the matter after considering the genuineness of the lorry receipts with the endorsement produced by the assessee and then modify the assessment accordingly as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order.
(7) I.A.No. 1219/2005 is closed Ordered accordingly.
(H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE cl/dk.
5 S.T.(Rev.)No.210/2005