POORNIMA Vs. SALES TAX OFFICER

JUDGEMENT

(1.) The writ petitioner is a small scale industrial unit registered with the Industries Department. It is a registered dealer under the provisions of the Kerala General Sales tax Act, 1963 (for short, 'the Act'). The petitioner seeks to quash the assessment orders passed under the Act for the years 1980-81,1981-82,1982-83 and 198 3-84 and to direct the respondents to refund a sum of Rs. 52,782.84 collected towards sales tax for the aforesaid assessment years.

(2.) The Government of Kerala issued notification dated 11.4.1979 (hereinafter referred to as 'first notification') exempting from payment of sales tax new small scale industrial units set up after 11.4.1979 for a period of five years from the date of production. However, in exercise of the powers conferred by S.10 of the Act the Government issued another notification on 29.9.1980 which was published in the Gazette on 21.10.1980 (hereinafter referred to as 'second notification'). By the said notification, the cumulative sales tax exemption concession granted to a unit at any point of time shall not exceed 90 percent of the cumulative gross fixed capital investment of the unit. It is also provided that the said notification shall be deemed to have come into force with effect from 1st April 1979.

(3.) The present small scale industrial unit was set up after 11.4.1979 and it started production from 9.6.1980. The first sale was effected on 7.7.1980. Though the petitioner was entitled to full exemption from payment of sales tax in view of the first notification, the first respondent assessed the petitioner for the years 1980-81 to 1983-84. The total liability as per the above assessment would come to Rs. 73,484.80. As against those assessment orders the petitioner filed appeals before the Appellate Assistant Commissioner. The appellate authority after hearing the appeals rendered the matter to the assessing authority to re-assess the petitioner with the direction to give the petitioner benefit of exemption available to small scale industrial units for a period of five years. The second respondent further directed the assessing authority to examine the claim of the petitioner for exemption in respect of the years 1982-83 and 1983-84. Exts.P1 to P4 are copies of the appellate orders. By Ext. P5 certificate issued by the General Manager, District Industries Centre, Quilon dated 5.2.1985 exemption was granted to the petitioner from payment of sales tax with effect from 7.7.1980 for a period of five years. However, the above certificate was issued in terms of SRO 968/80 (second notification) limiting the exemption to 90% of the capital investment.