KREEM FOODS P LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner herein is an assessee under the Kerala General Sales Tax Act (in short, "the Act" ). THE matter relates to the assessment years 1975-76 to 1980-81. THE assessments relating to the years 1975-76 to 1977-78 were reopened under section 19 of the Act. It is the revised orders of those years reopening the assessment, that are impugned in these revisions. THE petitioner, a limited company, is manufacturing and selling ice-creams under the trade name "joy Ice Cream" For the first three years - 1975-76 to 1977-78 - it was originally assessed to sales tax at the rate of 4 per cent. It was subsequently found out that the articles sold will come under item 25h (viii) of the First Schedule to the Act as it stood before the amendment by Act 19 of 1980, as foods. . . . . . . . . which are tinned, canned, bottled or packed and are sold under any brand name registered under the Trade and Merchandise Marks Act, 1958. Accordingly the turnover relating to ice-creams was brought to tax under entry 25h (viii) of the First Schedule to the Act before its amendment by Act 19 of 1980. THE appeals filed by the assessee (petitioner) was dismissed by the Deputy Commissioner (Appeals), Agricultural Income-tax and Sales Tax, Quilon. THE assessee filed second appeals before the Appellate Tribunal and raised two grounds. THE first ground was that the reopening of the assessment for the years 1975-76 to 1977-78 was unauthorised. THE second and more important ground that was raised was that ice-creams sold in cups and icesticks sold in paper bags do not come under the category mentioned in item 25h (viii) of the First Schedule to the Act, before its amendment by Act 19 of 1980 and that the said items can be taxed only at 4 per cent. (multi-point ). Both these contentions were repelled by the Sales Tax Appellate Tribunal. THE assessee has come up in revision. A consolidated revision has been filed for all the six years - 1975-76 to 1980-81.

(2.) WE heard counsel for the petitioner, Mr. Raman, as also counsel for the Revenue, Mr. Divakaran Pillai. The pleas advanced before the Sales Tax Appellate Tribunal were repeated before us. It was contended that the reopening of the assessments for the first three years 1976-76 to 1977-78 is unauthorised. There is no force in this plea. Section 19 of the Act permits the assessing authority to reopen the assessment "for any reason". If a particular goods has been assessed at too low a rate, it can be reopened under section 19 of the Act. On this basis, it is idle to contend that the reopening of the assessments for the first three years is unauthorised. Based on misconception or misunderstanding, the assessing authority initially assessed the turnover of the petitioner relating to ice-creams and ice-sticks only at 4 per cent. When the assessing authority came to know that the aforesaid goods are registered under the Trade and Merchandise Marks Act, 1938, he initiated proceedings under section 19 of the Act, so as to tax them under entry 26h (viii) of the First Schedule to the Act. In the circumstances, the initiation of proceedings under section 19 of the Act is justified. WE repel the contention of the petitioner's counsel to the contrary.