SARASWATHY ABHARANASALA Vs. CORPORATION BANK

JUDGEMENT

(1.) THE appellant approached this Court with the writ petition seeking a declaration that he would be liable to pay sales tax only at the rate of 0. 5% for the transaction he had with the first respondent/bank as reflected in Ext. P-2 and seeking refund as tax has been collected at the rate of 1%. He has also sought to quash Ext. P-3 communication issued by the first respondent/bank rejecting his claim for refund on the basis of a letter of the assistant Commissioner (Assessment), Commercial Taxes, which is produced by the first respondent as Ext. R-1 (B ). THE learned Single Judge after hearing both sides found that the dispute ought to have been resolved resorting to the provisions contained in Section 59a (d) of the Kerala General Sales Tax Act, 1963. It is submitted by the appellant that the said provision is applicable only in respect of the dispute as to the rate of tax. As the rate of tax is finally notified in Ext. P-1 at 0. 5%, there arises no question of any dispute on the rate of tax to attract the said statutory provision for resolving dispute. THErefore, the learned Single Judge went wrong and therefore, he would have been granted the relief prayed for.

(2.) HE also submits that he had long pending transaction of purchase of gold from the first respondent/bank who alone was on the party array when the O. P. was filed. HE had transaction worth Rs. 42,37,48,518 during the period from 6-4-1999 to 10-12-1999 in the assessment year 1999-2000. At that time, the rate of tax was as provided in S. R. O. 1728/1993 dated 1-1-1994 amended by s. R. O. 301/1999 dated 1-4-1999 , at the rate of 1% in respect of sale of bullion to persons other than manufacturers or exporters of jewellery. Therefore, he paid and the first respondent/bank collected tax at the rate of 1%. Later, by Ext. P-1 notification s. R. O. 1075/1999 dated 27-12-199 9 the relevant entry in Column 3 Schedule 4 of S. R. O. 1728/1993 as amended by s. R. O. 301/1999 was further amended as follows: "Sale of bullion and specie to any registered dealer within the State. "

(3.) THIS clause is a part of the general notification s. R. O. 1728/1993 which stands amended by several other notifications including s. R. O. 301/1999 dated 1-4-1999 and Ext. P-1 dated 28-12-1999. Therefore, this residuary clause is applicable even in respect of the tax collected from the appellant/ petitioner though he was liable to pay going by Ext. P-1 only at the rate of 0. 5%. Therefore, the reply given to the bank in Ext. R-1 (B) is justified and the appellant cannot get refund as claimed, the Special Government Pleader submits. In this respect, he has relied on the decision in Assistant commissioner (Assessment) v. Associated Cement Companies Ltd. ( 1997 K. L. J. (Tax cases) 265), APAR Ltd. v. Assistant Commissioner & Anr. (2000 (8)K. T. R. 363 (Ker.)) and Kokkala Arecanut Commission Agent Association v. The commissioner of Commercial Taxes (2003 (11) K. T. R. 316 (Ker.)) which are to the effect, according to him, that tax once paid cannot be refunded, when there is specific provision in the notification to that effect.