PIPE DISTRIBUTORS Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) The principal challenge in this writ petition is with regard to the note forming part of form No. 9 in the Kerala Value Added Tax Rules, 2005 (for short, "the Rules") prescribing the format for credit notes and debit notes, that are to be exchanged by a selling dealer and a purchasing dealer in cases where subsequent to the sale of taxable goods by a dealer the purchaser has returned the goods covered by the tax fully or partly. The challenge is on the premise that the note forming part of form No. 9, contained in the Rules is invalid, inoperative and unenforceable to the extent it specifies that every credit note would bear a corresponding debit note and vice versa and the same is, therefore, contrary to Section 41(1) of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as, "the Act"). There is also a challenge to the order of assessment passed by the assessing authority for the months of April, May and June, 2006. Obviously, the said order of assessment is appealable and this Court would be reluctant to entertain the challenge against the order of assessment, unless there are extraordinary circumstances warranting the same. But since a challenge has been mounted as regards the statutory prescription, I have considered the writ petition insofar as it relates to the challenge against the note to form No. 9 forming part of the Rules.

(2.) The petitioner is a dealer in pipes registered on the files of the first respondent, it filed annual return for the year 2005-06 and also for the month of June, 2006. The second respondent proposed to pass an order of assessment after rejecting the returns. This was opposed by the petitioner. Overruling the contention, a best judgment assessment was passed by the assessing authority as per exhibit P4. One of the aspects dealt with in the order of assessment related to a claim made by the assessee in relation to certain goods, which apparently were returned by the purchaser. The assessing authority proposed acceptance of only such credit notes, to which there were corresponding debit notes issued by the purchasing dealer. The assessee claimed that debit notes have been obtained only in respect of a portion of the turnover. The assessing authority, therefore, did not accept the claim of the assessee as regards the entire input tax on sales return. A reading of the order of assessment shows that the assessee was granted an opportunity to produce debit notes even at the time of personal hearing. The assessee has been required to pay only the balance tax due, after giving credit to the eligible input tax. In the wake of this view taken by the assessing authority, deciding to adhere to the mandatory prescriptions discernible from form No. 9 of the Rules, the assessee has thought it necessary to challenge the validity of the said form, on the premise that it is ultra vires Section 41 of the Act.

(3.) In a statement filed on behalf of the respondents, as directed by this Court, it is stated that an audit visit was conducted at the business place of the petitioner on November 13, 2006. Verification of the monthly return from April, 2005 to June, 2006 disclosed that the dealer had effected sales returns to the tune of Rs. 20,35,206 and claimed an input tax of Rs. 77,953 on the sales return for the returned goods. Even though the petitioner produced credit notes to prove this claim, no debit notes were produced at the time of verification of the accounts. The assessee produced certain debit notes for the input tax claimed at the time of objecting to the pre-assessment notice. Though almost an year was available to the assessee to produce the debit notes, he was not able to do so. Mere filing of the credit notes given to the purchasing dealer by the selling dealer is not sufficient to allow exemption on account of the return of goods once sold. The assessing authority will not be in a position to ascertain whether credit notes have actually been issued to the purchaser. It is also contended that, in the present case, the assessee did produce some debit notes corresponding to the credit notes issued by him. On verification of the same, the sales return was accepted to the extent where it is proved that the goods, which once sold were returned within a period of 90 days, as provided in law. Essentially, Section 41 of the Act enables the selling dealer to claim a credit for a portion of the input tax, where some of the goods which were sold are returned for a variety of reasons. Form No. 9 is in a format that is consistent with Section 41 of the Act. It is also contended that the order of assessment is rested on other grounds as well.