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K.K. Ismail Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number T.R.C. Nos. 150, 156 and 157 of 1977
Judge
Reported in[1979]43STC123(Ker)
AppellantK.K. Ismail
RespondentThe State of Kerala
Appellant Advocate P.A. Mohammed (T), Adv.
Respondent AdvocateThe Government Pleader
DispositionPetition dismissed
Cases ReferredSales Tax Officer v. C. C. Transport Co.
Excerpt:
.....-(1) where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable, or any deduction has been wrongly made therefrom, the assessing authority may, at any time within four years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such turnover after issuing a notice on the dealer and after making such enquiry as it may consider necessary..........no application. section 19(1) of the kerala general sales tax act, 1963, reads:19. assessment of escaped turnover.-(1) where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable, or any deduction has been wrongly made therefrom, the assessing authority may, at any time within four years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such.....
Judgment:

Gopalan Nambiyar, C.J.

1. These three tax revision cases are by the same assessee in respect of the assessment for three different assessment years. T. R. C. No. 150 of 1977 is in respect of the year 1968-69, T. R. C. No. 156 of 1977 relates to the assessment year 1966-67 and T. R. C. No. 157 of 1977 relates to the assessment year 1967-68. For the sake of convenience, we may notice the facts in T. R. C. No. 157 of 1977.

2. The assessee claimed to be a dealer in iron scraps, eligible to be assessed at the general rate of 3 per cent under Section 5 of the Act. He was so assessed by the Sales Tax Officer at the general rate. But the successor of that officer took the view that the assessment had to be made under entry 8 of the First Schedule of the Kerala General Sales Tax Act, as motor spare parts, and the tax had to be at the rate of 12 percent. The assessment was accordingly revised under Section 19(2) of the Act after notice to the assessee. On appeal by the assessee, the Appellate Assistant Commissioner allowed the appeal and set aside the assessment. On further appeal by the revenue, the Sales Tax Appellate Tribunal set aside the judgment of the Commissioner and restored that of the Sales Tax Officer, thereby maintaining the revised assessment under Section 19 of the Act. The validity of this order has been challenged in this revision. The Sales Tax Officer in the first order of assessment stated :

I have examined all these certificates and also verified the sale bills, etc., again. I have also made personal enquiries regarding the articles purchased and sold by the dealer. The facts stated by him in his reply dated 24th January, 1969, are found to be correct. The articles purchased and sold are only old iron and motor scraps which are taxable at 3 per cent and it will not come within the ambit of item 8 of the First Schedule of the Kerala General Sales Tax Act, 1963. So, the entire turnover disclosed by the accounts will be taxed at 3 per cent accepting the explanation offered by the dealer.

In revising the assessment under Section 19 of the Act, the successor officer stated :

His accounts will speak that he has got dealings in old motor parts purchased from outside the State as well as dismantled worthless motor parts plucked out from vehicles as seen on a perusal of the invoices, etc., produced by the assessee. He has also issued sale bills by mentioning the name of different kinds of motor parts, No. of item, etc., sold. Therefore, it is not fully correct to say that he has sold such articles in lot without weighing. Of course, there are such cases sold in lot as scrap iron materials ; such turnover has been estimated and assessed. When his accounts show dealings of old motor parts purchased from outside the State besides useless and condemned motor parts, he cannot simply say that all his dealings are only scrap iron materials. Item 8 of Schedule I of the Act is motor parts. No mention has been made as the new or old. Therefore, old motor parts purchased as such from outside the State will come under item 8 of Schedule I of the Act.

Whatever doubts there might be on the question as to whether the accounts had been examined by the Sales Tax Officer on the earlier occasion will stand dispelled by the order of the Appellate Assistant Commissioner, wherein he stated that the assessment for 1966-67 was completed by the Sales Tax Officer on 7th November, 1967, after due verification of the accounts ; so there can be no question that the materials on the basis of which the earlier officer and the successor officer proceeded were practically, if not actually, the same.

3. Counsel for the assessee stressed that what happened was a mere change of opinion on the part of the officer and that he was not justified in taking action under Section 19 of the Act. He indented the decisions under Section 147 of the Income-tax Act, 1961, providing for assessment of escaped income. But on the difference in language of the concerned sections between the two enactments, it is plain that the principles of the decisions under the Income-tax Act can have no application. Section 19(1) of the Kerala General Sales Tax Act, 1963, reads:

19. Assessment of escaped turnover.-(1) Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable, or any deduction has been wrongly made therefrom, the assessing authority may, at any time within four years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such turnover after issuing a notice on the dealer and after making such enquiry as it may consider necessary :

Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard.

The wide and comprehensive way in which the section opens is sufficient to make it clear that the power of reassessment can be exercised if, 'for any reason' the whole or any part of the turnover of a dealer has escaped assessment or has been under-assessed or has been assessed at a lower rate. The reason being immaterial, it is, on the terms of the section, of no consequence whether what happened was a mere change of opinion on the part of the succeeding officer from that formed by his predecessor. This aspect of the matter has been clearly stated in George v. Sales Tax Officer, 1st Circle, Trivandrum 1963 K.L.J. 769. M.S. Menon, C.J., speaking for the Bench with respect to Rule 33(1) of the Kerala General Sales Tax Rules, 1950, observed :

6. We cannot find our way to accept this submission. The word 'escape' indicates the gaining of freedom, from something, from somebody or from somewhere. The sales tax is a tax on turnover. What escapes in every case will be the whole or part of the turnover ; what it escapes from cannot be the turnover itself but the assessment.

7. A part of the turnover-the part relating to the sale of the tins-has escaped assessment in this case. The reasons for the escape may vary from case to case ; but that is of no consequence. If the turnover is mentioned in the return, the escape may be due to the stupidity of the assessing authority. If it is not mentioned or so mentioned as not to alert the assessing authority, the escape may be due to the cupidity of the assessee himself. But whatever be the reason, if an escape has occurred, it is an escape from assessment; what escapes is the turnover and Rule 33(1) comes into play.

8. A distinction has been made in some cases between 'escaped turnover' and 'escaped assessment'. We consider it unnecessary to examine the subtleties of this distinction.

The language and the pharaseology of Section 35 of the Sales Tax Act, 1963, or the corresponding provision of the earlier Act had also come in for notice before the Supreme Court on more than one decision. These would be found referred in a recent judgment of a Division Bench of this Court in Sales Tax Officer v. C. C. Transport Co. 1978 C.T.R. (Ker.) 116. These decisions have strictly no application to the case on hand except for emphasising the wide and comprehensive language of the section under which reassessment proceedings are pursued.

Having regard to the language of the section and scope and content of the power as explained by the judicial decisions, we are of the opinion that the view taken by the Sales Tax Appellate Tribunal in these cases was correct and calls for no interference. We dismiss these revision cases, but, in the circumstances, without costs.


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