WELL WORTH PLASTICS Vs. STATE OF KERALA

JUDGEMENT

(1.) THE only issue raised in this revision petition by the assessee is that the Tribunal ought not have justified the demand of collected tax in the assessment year 1983-84 by invoking section 46a of the Kerala General Sales Tax Act, 1963. According to the learned counsel appearing for the revision petitioner, the revision petitioner by mistake collected excess tax and remitted the same to the Government. In the assessment the assessing officer assessed tax at the actual rate but demanded collected tax which is in excess of the tax assessed and due from the revision petitioner. THE revision petitioner filed an appeal against the same stating that the revision petitioner ought to have been granted refund of the excess tax paid though collected and remitted by it to the Government. This was rejected by the appellate authority and the Tribunal also confirmed the action by the assessing officer by relying on section 46a of the Act, which provides for forfeiture of excess collection.

(2.) ACCORDING to the learned counsel appearing for the revision petitioner, this is a case of excess collection of tax and remittance of the same by the assessee to the Government. Though the assessing officer rightly assessed tax at the correct rate, he demanded the tax paid as "tax due". The revision-petitioner questioned this action of the officer in demanding collected tax which is in excess of the tax assessed on the ground that there was no provision in the Act or Rules during the year to demand collected tax. ACCORDING to the counsel appearing for the revision-petitioner the assessing officer should have granted refund of the excess tax while completing the assessment under section 44 (1) of the Act. On facts, we find that the assessment was completed on the basis of the return filed and the revision-petitioner never claimed refund of the excess tax by filing revised return showing excess payment of tax or claiming refund of the same. Therefore, there was no occasion for the assessing officer to consider the question as to whether excess tax collected and paid should be refunded or forfeited.

(3.) THE question now remains for consideration is whether an order could be sustained by the Tribunal under section 46a when no order was issued by the officer after observing the procedure contemplated under section 46a. On the facts, we find that the revision petitioner has filed return admitting the turnover and the tax collection at higher rate and remitted the same along with monthly returns. THE Officer though assessed the turnover at lower rate, demanded the tax paid by the petitioner as "tax due" because there was no claim for refund at the time of assessment. In such a case, there was no necessity for the assessing officer for issuing a notice under section 46a to forfeit the excess collection because petitioner had voluntarily paid the amount and did not claim refund of it. In such circumstances, we find there is nothing wrong in the action of the Tribunal in treating the order of the officer as one issued in exercise of the powers conferred under section 46a of the Act especially when the officer has such power and the order is consistent with it. We find there is nothing illegal or irregular in the assessment demanding excess tax collected and paid which is in exercise of the statutory powers conferred on the officer under section 46a of the Kerala General Sales Tax Act and we, therefore, sustain the order of the Tribunal upholding it. THE buyers from whom the petitioner has collected excess tax are free to approach the officer concerned in terms of rule 31d of the Kerala General Sales Tax Rules for refund. This tax revision case is accordingly dismissed. Petition dismissed. .