STATE OF KERALA Vs. CARDAMOM PLANTERS ASSOCIATION

JUDGEMENT

(1.) The Revenue is the Revision Petitioner. Respondent is an association of Cardamom Growers. They conduct auction sale of cardamom produced by the members of the association. The question involved in these cases is whether the association is liable under the Kerala Surcharge on Taxes Act, 1957.

(2.) According to the respondents they were auctioning cardamom in a representative capacity and the liability to pay surcharge on the turnover of cardamom referable to the auction sales, ought to depend on, as whether or not, surcharge would become leviable, bad the assessment been made on each grower on his turnover of the goods. In other words, according to the respondents, the total sales turnover of cardamom should not be the criteria for imposition of surcharge. The Tribunal held that the respondent was only an agent, that the members whose crop was auctioned by the respondent were the principals, that the agent could be assessed under the Kerala General Sales Tax Act only on the aggregate turnover relating to the principals who were liable to tax under S.5 and that surcharge could likewise be levied only in respect of the turnover of those principals whose individual turnover was not less than Rs. 30,000/ .

(3.) These Revision Petitions relate to the assessment years 1973-74, 1974-75, 1975-76 and 1976-77. For these assessment years the Sales Tax Officer treated the respondent as a dealer under the Kerala General Sales Tax Act and assessed them to sales tax and to surcharge. The Deputy Commissioner of Agricultural Income tax and Sales tax, Central Zone, in exercise of the powers under S.35 of the KGST Act, set aside the assessment order and remanded the case for fresh disposal, holding that the imposition of surcharge was regular. The assessee went in appeal before the Kerala Sales Tax Appellate Tribunal, by filing T.A. Nos. 960 to 963 of 1982. They contended before the Tribunal that they are only an "agents" of the Growers, whose produce is auctioned by it and that the liability to surcharge cannot be decided on the basis of the aggregate turnover in their hands. The Tribunal held that the order of the Deputy Commissioner directing the assessing authority to treat the respondent in a capacity different from that of an agent was wrong because the immediate effect of that direction would be to impose surcharge on the aggregate turnover without excluding the turnover of those members whose total turnover would be below the amount specified for charging surcharge. This conclusion of the Tribunal is under challenge.