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The Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Vs. K.A. Karim and Sons - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. No. 33 of 1975
Judge
Reported in[1978]41STC358(Ker)
AppellantThe Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes)
RespondentK.A. Karim and Sons
Appellant AdvocateGovernment Pleader
Respondent Advocate K.K. Usha, Adv.
DispositionPetition dismissed
Cases ReferredK.A. Karim v. Sales Tax Appellate Tribunal
Excerpt:
.....case relates to the year 1962-63 and it arises from a common order of the kerala sales tax appellate tribunal, trivandrum, for the said period as well as for 1958 to 1962. the question which arises for our consideration is whether the kerala sales tax appellate tribunal was justified in holding that the assessee's purchase turnover of cashew kernel during the period from 21st june, 1962, to 31st march, 1963, was, even in the absence of declarations in form no. in the circumstances, we are of the view that the tribunal was perfectly justified in holding that notwithstanding the retrospective operation of the act, the assessee was not obliged to produce the declaration for the purpose of claiming exemption from tax under the second proviso to section 3(1). this tax revision case..........case relates to the year 1962-63 and it arises from a common order of the kerala sales tax appellate tribunal, trivandrum, for the said period as well as for 1958 to 1962. the question which arises for our consideration is whether the kerala sales tax appellate tribunal was justified in holding that the assessee's purchase turnover of cashew kernel during the period from 21st june, 1962, to 31st march, 1963, was, even in the absence of declarations in form no. 25, exempt from tax.2. in k.a. karim v. sales tax appellate tribunal, kerala, trivandrum [1963] 14 s.t.c. 36, this court held that the purchases of kernel did not attract purchase tax. this decision was rendered on 21st june, 1962. in the light of this decision, the assessee rightly believed that the cashew kernels were not.....
Judgment:

T. Kochu Thommen, J.

1. This tax revision case relates to the year 1962-63 and it arises from a common order of the Kerala Sales Tax Appellate Tribunal, Trivandrum, for the said period as well as for 1958 to 1962. The question which arises for our consideration is whether the Kerala Sales Tax Appellate Tribunal was justified in holding that the assessee's purchase turnover of cashew kernel during the period from 21st June, 1962, to 31st March, 1963, was, even in the absence of declarations in form No. 25, exempt from tax.

2. In K.A. Karim v. Sales Tax Appellate Tribunal, Kerala, Trivandrum [1963] 14 S.T.C. 36, this court held that the purchases of kernel did not attract purchase tax. This decision was rendered on 21st June, 1962. In the light of this decision, the assessee rightly believed that the cashew kernels were not liable to tax at the purchase point. However, the position was altered retrospectively by the Kerala Sales Tax (Levy and Validation) Act, 1965, hereinafter called the Act. Section 3 of this Act provided :

3. Liability of dealers for tax on the purchase of copra and cashewnut kernel.-(1) Every dealer shall be liable to pay for each year during the period commencing on and from the 1st day of April, 1958 and ending with the 31st day of March, 1963, a tax on his turnover relating to the purchase of copra or cashewnut kernel for that year at the rate of four paise for every rupee in such turnover:

Provided....

Provided further that no tax shall be levied under this section on copra or cashewnut kernel if a tax has already been levied on the purchase of coconut or cashewnut out of which such copra or cashewnut kernel is produced....

Accordingly, tax was retrospectively imposed on the purchase of cashew-nut kernel, but exemption from tax was granted if tax had already been levied on the purchase of cashewnut out of which the kernel was produced.

3. The assessee contended that for the period 1962-63 he was, notwithstanding the retrospective imposition of tax, entitled to claim exemption from tax for the cashewnuts from which the kernels were produced and which had already been taxed at the purchase point. Both the Sales Tax Officer and the Appellate Assistant Commissioner did not accept this contention on the ground that the claim for exemption was not supported by necessary declaration in form No. 25. However, on further appeal to the Tribunal, it was held that the assessee was entitled to claim exemption even in the absence of declarations in form No. 25. The Tribunal stated as follows:

In 1962-63, the case of the appellants is that they did not file declarations on the strength of the decision of the Kerala High Court in their own ease reported in K.A. Karim v. Sales Tax Appellate Tribunal [1963] 14 S.T.C. 36. According to the decision, no tax was payable on the purchase turnover of cashewnut or kernel. The learned counsel for the appellant relies on the decision of the Supreme Court reported in Sales Tax Officer v. Timber & Fuel Corporation [1973] 31 S.T.C. 585 (S.C.), wherein it has been held :

'That when the taxable events took place, the respondent was not liable to be taxed on the sales effected by it and its liability had to be determined as on those dates.'

and contends that in view of the decision of the Kerala High Court in K. A. Karim v. Sales Tax Appellate Tribunal1, cashewnut was not liable to purchase tax till Act 4 of 1965 was pronounced in 1965. The date of decision in K.A. Karim v. Sales Tax Appellate Tribunal [1963] 14 S.T.C. 36, is 21st June, 1962. Therefore, from that date, the commodity in question was not liable to tax on the purchase point. So, according to him, he need not have filed any declaration in regard to the turnover from 21st June, 1962, onwards. We feel that there is some force in this contention. The Sales Tax Officer will exempt the turnover in question and allow exemption on the same from 21st June, 1962, to 31st March, 1963, even if they are not supported by declarations in form No. 25.

The assessee had purchased the cashewnuts from registered dealers. Presumably tax had been levied on these goods at the purchase point. It is out of these cashewnuts that the kernels were produced by the assessee. At the time of the purchase of the cashewnuts, it was unnecessary for the assessee to obtain evidence regarding the payment of tax by the sellers as the commodity was exempt from tax on the basis of the aforesaid decision of this court. It is true that tax on purchace of kernel was introduced retrospectively in cases not falling under the second proviso to Section 3(1). Nevertheless, for the purpose of claiming exemption, it is not reasonable to expect the assessee to produce the declaration in form No. 25 for an anterior period when there was no tax on the purchase of cashewnuts. In the circumstances, we are of the view that the Tribunal was perfectly justified in holding that notwithstanding the retrospective operation of the Act, the assessee was not obliged to produce the declaration for the purpose of claiming exemption from tax under the second proviso to Section 3(1). This tax revision case challenging the order of the Tribunal as regards the year 1962-63 is dismissed. The parties will bear their respective costs.


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