ANSWARA TRADERS Vs. SALES TAX OFFICER AND ANR

JUDGEMENT

(1.) Common question arises for consideration in all these cases, hence we are disposing of these cases by a common judgment. For disposal of these cases we may refer the facts in O.P. No. 5328 of 1997 against which W. A. 944 of 1998 was Hied.

(2.) A learned single Judge of this Court interpreting Sub-section (14) of Section 7 took the view that the Legislature while providing for deduction of the tax paid by a dealer for the purchase of arrack on the first sale point could have meant only the tax which is payable under the Act and paid by the dealer. Learned single Judge also felt that any other meaning to be attributed to the expression "tax paid by him" for the purchase of arrack on the first sale point will not be in accordance with the scheme of the Act. Learned single Judge felt that the tax paid in the context has to be understood only as the "tax payable". Learned single Judge therefore concluded that the petitioner is entitled to deduct the tax paid only at the rate of 50 per cent while computing the amount payable under Sub-section (14) of Section 7 of the Act. Consequently the proceedings initiated by respondents were upheld.

(3.) Learned single Judge also noticed that in a case where the petitioner has paid tax in excess of what is due under the Act and the same has been made over to the Government by the dealer who collected the same in accordance with the provisions of Rule 21 of the Kerala General Sales Tax Rules, 1963 and if the said dealer had not made any claim for refund of the excess amount so remitted cannot be said that the petitioner did not pay tax as provided under Sub-section (14) of Section 7 of the Act. Learned single Judge also took the view that if the petitioner is able to establish that the excess amount collected by the dealers on the sale of arrack to the petitioner had been remitted to the department in time and that no claim for refund of the said amount had been made by the said dealer either by way of appeal or otherwise and that the said amount remitted is with the Government, certainly the petitioner would be entitled to get back the said amount or adjust the said amount towards the balance tax demanded.