JOSEPH SCARIA Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) Since the issue involved in both these cases is the same, they are taken up together for consideration and disposed by this common judgment.

(2.) The petitioner is a registered dealer under the Kerala Value Added Tax Act. The commodity that is dealt with by him goes under the name of "prepared rubber accelerators". In these writ petitions, the KVAT assessments for the years 2005-2006, 2006-2007 and 2007-2008 are in issue. W.P.(C).No. 37701 of 2008 is filed in respect of the assessment years 2005-2006 and 2006-2007, whereas W.P.(C).No. 19488 of 2009 is filed in respect of the assessment year 2007-2008. For the assessment years 2005-2006 and 2006-2007, the KVAT assessment of the petitioner was initially completed by accepting the returns filed by the petitioner, wherein he had indicated the item in question as classifiable under Entry 124 of List A to the III schedule to the Kerala Value Added Tax Act that dealt with "prepared rubber accelerators; compound plasticizers for rubber or plastics; Anti oxidizing preparations and other compound stabilizers for rubber or plastics" and attracting tax at the rate of 4% ad valorem. Thereafter, by Ext. P1 notice issued under section 25(1) of the Kerala Value Added Tax Act, the department sought to rely on Ext. P2 clarification issued by the Commissioner of Commercial Taxes, Trivandrum in respect of another dealer and dealing with the commodity "dispersal", and sought to classify the item as falling under the residuary entry and taxable at the rate of 12.5% ad valorem. Although the petitioner preferred a detailed reply to the said notice contending, inter alia, that the item that was dealt with by him was not the same as what was considered by the Commissioner of Commercial Taxes in Ext. P2 order of clarification, the assessment was completed vide Ext. P4 order by treating the commodity dealt with by the petitioner also as falling under the residual entry for the purpose of taxation. Accordingly, the petitioner's commodity was also held to attract tax at the rate of 12.5%. The assessment was therefore completed by Ext. P4 order, confirming the differential tax demand against the petitioner in respect of the said commodity for the assessment years 2005-2006 and 2006-2007. Ext. P4 assessment order is impugned in W.P.(C).No. 37701 of 2008.

(3.) In W.P.(C).No. 19488 of 2009, where the assessment year in question is 2007-2008, the petitioner approached this Court challenging Ext. P1 notice issued under section 25(1) of the Kerala Value Added Tax Act. The reasoning of the department in Ext. P1 notice being substantially the same as that in the assessment order passed in the other writ petition, the petitioner challenged the notice itself through this writ petition. It is thus that the two writ petitions came up for consideration together before this court.