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The Deputy Commr. of Sales-tax (Law) Vs. K. A. Karim and Sons. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberTRC No. 33 of 1975
Reported in(1977)6CTR(Ker)304
AppellantThe Deputy Commr. of Sales-tax (Law)
RespondentK. A. Karim and Sons.
Cases ReferredIn K. A. Karim vs. Sales
Excerpt:
- - -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 our consideration is whether the kerala sales tax appellate tribunal was justified in holding that the assessees purchase turnover of cashew kernal during the period from 21-6-1962 ton 31-3-1963 was, even in the absence of declarations in form no......tribunal, trivandrum, for the said period as well as for our consideration is whether the kerala sales tax appellate tribunal was justified in holding that the assessees purchase turnover of cashew kernal during the period from 21-6-1962 ton 31-3-1963 was, even in the absence of declarations in form no. 25, exempt from tax.2. in k. a. karim vs. sales-tax appellate tribunal, kerala, trivandrum, this court held that the purchases of kerala did not attract purchase tax. this decision was rendered on 21-6-1962. 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 general sales tax (levy and validation) act, 1965, hereinafter called the act,.....
Judgment:

Kochu Thommen, J. - 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 our consideration is whether the Kerala Sales Tax Appellate Tribunal was justified in holding that the assessees purchase turnover of cashew kernal during the period from 21-6-1962 ton 31-3-1963 was, even in the absence of declarations in Form No. 25, exempt from tax.

2. In K. A. Karim vs. Sales-tax Appellate Tribunal, Kerala, Trivandrum, this Court held that the purchases of Kerala did not attract purchase tax. This decision was rendered on 21-6-1962. 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 General Sales Tax (Levy and Validation) Act, 1965, hereinafter called the Act, S.3 of this Act provided :

'3. Liability of dealers for tax on the purchase of copra and cashewnut kernal. - (1) Every dealer shall be liable to pay for each year during the period commencing on and from the 1st day of April 1958, a tax on this 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 kernal is produced.......'

Accordingly tax was retrospectively imposed on the purchase of cashewnut ketnel, but exemption from tax was granted if tax had already been levied on the purchase of cashewnut out of which the kernal 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 kernals 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 if 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 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 case reported in 14 STC. 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 31 STC. 585 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 is 14 STC. 36, cashewnut was not liable to purchase tax till Act 4 of 1965 was pronounced in 1965. The date of decision in 14 STC 36 is 21-6-1962. 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 21-6-1962 onwards. We feel that there is some force in this contentions. The Sales-tax Officer will exempt the turnover in question and allow exemption on the same from 21-6-1962 to 31-3-1963 even if they are not supported by declarations in form 25.'

The assessee had purchased the cashewnuts from registered declare. Presumably tax had been levied on these goods at the purchase point. It is out of those 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 purchase of kernel was introduced retrospectively in cases nit falling under the second proviso to S. 3(1). Nevertheless, for the purpose of claiming exception, it is not reasonable to expect the assessee to produce the declaration in Form 25 for an anterior period when they was no tax on the purchase of cashewnuts. In the circumstances, we are of the view that the Tribunal was prefectly 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 S. 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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