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M.i. Ishaque Yakub and Co. and ors. Vs. Commercial Tax Officer, I Circle, Mysore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 1604 to 1608 of 1970
Judge
Reported in[1971]27STC335(Kar)
ActsCentral Sales Tax Act, 1956; Central Sales Tax (Amendment) Act, 1969 - Sections 10
AppellantM.i. Ishaque Yakub and Co. and ors.
RespondentCommercial Tax Officer, I Circle, Mysore
Appellant AdvocateK. Srinivasan and ;T.V. Srinivasan, Advs.
Respondent AdvocateH.K. Vasudeva Reddy, Government Pleader
Excerpt:
.....act, as not maintainable. the court has to consider the application filed by the petitioner under section 10 of the religious endowments act, 1863 (act xx of 18863). - therefore it is clear that the assessment orders and the demand notices for recovery of amounts in excess of the tax assessed are clearly illegal and without jurisdiction......[1965]2scr129 . after the act was amended by the central act 28 of 1969, the respondent passed the assessment orders. according to the said assessment orders, the tax assessed and the tax demanded are as follows :- --------------------------------------------------------------- tax assessed tax demanded---------------------------------------------------------------rs. p. rs. p. --------------------------------------------------------------- w.p. no. 1604/70 12,823.73 17,879.75w.p. no. 1605/70 370.16 695.46 w.p. no. 1606/70 2,787.38 2,906.73 w.p. no. 1607/70 8,983.63 11,679.69 w.p. no. 1608/70 1,381.64 1,456.23 --------------------------------------------------------------- 2. in all the above cases, the tax demanded is more than the tax assessed. the respondent has demanded more amount.....
Judgment:
ORDER

Govinda Bhat, J.

1. These writ petitions are directed against the five assessment orders dated 31st March, 1970, made by the respondent under the Central Sales Tax Act, 1956, hereinafter called the Act, assessing the petitioners to tax for the year ended on 31st March, 1965. The petitioners are dealers in hides and skins. Their turnover in inter-State sales was not liable to tax under the Central Sales Tax Act, 1956, in view of the decision of the Supreme Court in State of Mysore v. Yaddalam Lakshminarasimhiah Setty & Sons : [1965]2SCR129 . After the Act was amended by the Central Act 28 of 1969, the respondent passed the assessment orders. According to the said assessment orders, the tax assessed and the tax demanded are as follows :-

--------------------------------------------------------------- TAX ASSESSED TAX DEMANDED---------------------------------------------------------------Rs. P. Rs. P. --------------------------------------------------------------- W.P. No. 1604/70 12,823.73 17,879.75W.P. No. 1605/70 370.16 695.46 W.P. No. 1606/70 2,787.38 2,906.73 W.P. No. 1607/70 8,983.63 11,679.69 W.P. No. 1608/70 1,381.64 1,456.23 ---------------------------------------------------------------

2. In all the above cases, the tax demanded is more than the tax assessed. The respondent has demanded more amount than what has been assessed, on the ground that the petitioners have collected more amounts by way of tax. The entire amounts collected by the petitioners by way of tax have been demanded notwithstanding the fact that the tax assessed on the respective turnovers of the petitioners is less.

3. The petitioners have challenged the assessment orders on the following two grounds : firstly, that the respondent has no jurisdiction to demand any amount in excess of the tax assessed; secondly, that under the Act before it was amended, the transactions in question were not exigible to tax and therefore whatever amounts were collected by the petitioners before the amendment of the Act cannot be said to be tax collected under the Act and therefore by virtue of section 10 of the Central Act 28 of 1969 the petitioners' turnovers between the 10th day of November, 1964, and 9th day of June, 1969, are exempt from tax.

4. The petitioners are entitled to succeed on the first ground alone and it is not necessary for the present to express any opinion on the second ground. There is no authority under the Act to demand from an assessee any amount in excess of the tax assessed. If an assessee collects any amount in excess of the actual tax, the assessing authority cannot demand such excess amount. The assessing authority can only demand the tax that is actually assessed on the turnover of the assessee. Therefore it is clear that the assessment orders and the demand notices for recovery of amounts in excess of the tax assessed are clearly illegal and without jurisdiction.

5. The second ground that the petitioners are entitled to exemption under section 10 of the Amendment Act is a ground which the assessees can urge in the remedies provided under the Act.

6. In the result, these writ petitions are allowed and the impugned assessment orders and the demand notices are quashed. The respondent is at liberty to make fresh assessment orders in accordance with law. The petitioners are entitled to costs. Advocate's fee Rs. 100 one set.

7. Petitions allowed.


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