FLEMINGO (DFS) PVT LTD Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) This appeal is filed by the petitioner in W.P.(C) No.8211 of 2012. The said writ petition was filed challenging Ext.P4, an order passed by the first respondent demanding payment of Rs 2,18,98,974/-, being the tax collected by the assessee during the Assessment Year 2009-10 together with interest thereon and also levying penalty under Section 67 of the KVAT Act. By the judgment under appeal, the learned single Judge disposed of the writ petition, whereby although the learned single Judge accepted the contention of the appellant that it being engaged in duty free sales of foreign goods, is not liable to pay tax, having regard to the law laid down in Hotel Ashoka (Indian Tour. Dev. Cor. Ltd.) v. Assistant Commissioner of Commercial Taxes and Another, 2012 48 VST 443 (SC), it was ordered that the assessee itself having conceded collection of tax, should have paid the collected tax to the Department. It was on that basis, Ext.P4 order was sustained. It is this judgment which is under challenge.

(2.) We heard Sri.K.Venkittaraman, the learned Senior Counsel appearing for the appellant duly assisted by Advocate Sri.Hari Kumar G. Nair and the learned Government Pleader appearing for the respondents.

(3.) The contention raised by the learned Senior Counsel for the appellant was only that, the whole demand arose out of a mistake on the part of the assessee. Referring to the additional documents that were produced before this Court along with I.A. No.1233 of 2017, the learned Senior Counsel pointed out that in the monthly returns that were filed by it, the assessee had shown its turnover as exempted. However, in the annual return despite showing the tax due as 'Nil' in the summary statement, while indicating the particulars of turnover, the output tax collected has been indicated wrongly as Rs 18,249,145.18/-. It is stated that it is entirely based on this mistake in the return that notice was issued. It is pointed out that immediately on receipt of the notice, the mistake was found out and a revised return was filed, and that on that basis a reply was filed to the first respondent. The learned Senior Counsel also produced before this Court's perusal a file containing the sales invoices together with the copy of the passports of the concerned purchasers, to substantiate his plea that, no tax was collected at the time of sale. According to him, therefore, this is not a case where any tax was collected by the assessee justifying the demand as shown in Ext.P4 or levy of penalty under Section 67 of the KVAT Act.