SIEMENTS LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE matter arises under the Kerala General Sales Tax Act, 1963 as amended for short 'the Act' and under the Kerala General Sales Tax rules, 1963 as amended for short the Rules'.

(2.) THE petitioner is a company registered under the indian Companies Act, 1956 with its registered office at Worli, Mumbai. It is a registered dealer under the Kerala General Sales Tax Act, 1963 and under the central Sales Tax Act. It is an assessee on the files of the 3rd respondent. THE petitioner is manufacturerscum-dealers of electrical and electronic goods. THEy have filed this Original Petition challenging the provisions of sub-s. (7b)of S. 7 of the K. G. S. T. Act and Rules 22a (2) and 22a (5) of the K. G. S. T. Rules as ultra vires and invalid being beyond the scope of legislative competence of the state. THEy sought for a declaration that sub-s. (7b) of S. 7 of the K. G. S. T. Act and Rr. 22a (2) and 22a (5) of the K. G. S. T. Rules are invalid and unsustainable being beyond the scope of the charging provision contained in S. 5 (1) (iv) of the k. G. S. T. Act. THEy also sought for quashing Exts. P4, P6, P8 and P14 communications. THEy further sought for a direction restraining the respondents from deducting any amount towards tax invoking subs. (7b) of S. 7 of the K. G. S. T. Act.

(3.) LEARNED Government Pleader appearing for the respondents based on the averments made in the statement filed on behalf of respondents 2 to 5 submitted that the amended provisions have to be upheld in view of the decision of the Supreme Court in Builders Association case and that the latest decision of the Supreme Court rendered in the context of the provisions of S. 13aa of the Orissa General Sales Tax Act will not apply to the instant case. He submitted that the provisions of sub-s. (7b) of S. 7 and Rr. 22a (2) & (5) are not similar to S. 13aa of the Orissa General Sales Tax Act. He further submitted that the proviso of R. 22a (2) and R. 22a (3) makes the position clear and that if the petitioner is not prepared to pay the tax under sub-s. (7b) of S. 7, they can approach the assessing authority under sub-r. (3) of r. 22a for getting a certificate and that on production of the same, the awarder will make payments without any deduction. He also submitted that sub-s. (7b) is only in the nature of collection of advance tax and that final assessment and adjustment of tax already collected is contemplated under the Rules, which is well within the competence of the State Legislature. The Government Pleader accordingly submitted that the provisions are valid.