IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 ST.Rev..No. 148 of 2007() ------------------------- TA.395/2002 of STAT ADDL.BENCH, KOTTAYAM .................... REVISION PETITIONER/RESPONDENT/ASSESSEE ----------------------------------------------------------- THE SECRETARY, DEVIKULAM GIRIJAN SERVICE CO-OP. SOCIETY, MUNNAR, IDUKKI DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): APPELLANT/REVENUE -------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. TEKCHAND THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 11/12/2008, ALONG WITH STRV NO. 157 OF 2007 STRV NO. 155 OF 2007 STRV NO. 153 OF 2007 ,STRV NO. 158 OF 2007, STRV 170 & 193/2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- S.T.Rev. Nos. 148,153,155, 157,158, 170 & 193 OF 2007 -------------------------------------------- Dated this the 11th day of December, 2008 JUDGMENT Ramachandran Nair,J. The question arising in the connected Tax Revision Cases is whether petitioner is liable to pay sales tax at the point of first purchase on the collection and sale of cardamom for it's members. We have heard senior counsel appearing for the petitioner and Government Pleader for respondents. 2. Petitioner is a society promoted mainly for marketing of agricultural produce of the members who are tribals in the Devikulam Taluk. Cardamom is one item produced by members and marketed by the society. In the course of assessment, the assessing officer treated the collection of cardamom by the petitioner from the members and sale of the same in auction by auctioneers as purchase and sale by the petitioner. Since cardamom is an item taxable at the point of first purchase in the State, petitioner was called upon to pay sales tax on 2 this. In the first appeal filed by the petitioner, the appellate authority after verifying the records noticed that petitioner was engaged in marketing of produce of members. The nature of transaction as found by the appellate authority is collection of cardamom by the petitioner from the members against issue of receipt showing the quantity collected and advance if any given without showing any purchase price or value. The cardamom so collected from the members is entrusted by the petitioner with auctioneers who are registered dealers for sale in auction. The sale of each member's cardamom is accounted by the petitioner later by paying full sale consideration after deducting advance if any given and expenses incurred by the society. From the nature of transaction as proved by documents, the appellate authority came to the conclusion that since there is no purchase of produce namely cardamom by the petitioner from the members, the petitioner cannot be subjected to purchase tax on the commodity. In second appeal, though the department did not controvert the finding entered by the first appellate authority, the Tribunal by referring to the trading accounting stated that the entire transactions are accounted under sales 3 and since value of cardamom is also covered therein, there is a presumption of sale. 3. Senior counsel appearing for the petitioner submitted that the finding of the Tribunal is not sustainable. Trading account referred to by the Tribunal does not show any purchase of cardamom. There is nothing wrong in accounting sales of cardamom because petitioner has in fact sold the cardamom through auctioneers. It is clear from the certificate obtained and produced by the petitioner from the purchasers/auctioneers that tax has been paid by them at the point of first purchase in the State. In fact, it is seen that the Officer himself has given credit of tax so paid by the auctioneers against demand raised against the petitioner. This pre-supposes that sale by auctioneers is the first sale in the State and so much so there was no loss of revenue, inasmuch as tax is paid on the taxable purchases made by dealers in auction sale. We are unable to uphold the finding of the Tribunal because besides trading account referred to by the Tribunal, there is no finding that the petitioner has in fact made purchases of cardamom from their members. On the other hand, Tribunal has not disturbed the 4 finding of the first appellate authority relying on the byelaws , accounts, receipts and final accounts submitted by the petitioner to the grower members that there was no purchase by petitioner from members. We find that byelaws only provide for marketing of agricultural produce of members of the petitioner-society. Even though Government Pleader pointed out that besides auction sale, petitioner has made sales to dealers in the State for some years, we do not think it makes any difference because so long as there is no purchase by the petitioner from the growers, tax on first purchase of cardamom cannot be levied on the petitioner. In view of the clear-cut findings on facts by the first appellate authority which are consistent with byelaws of the society produced by senior counsel, we allow the Tax revision cases by reversing the order of the Tribunal and restoring the orders of the first appellate authority. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. 5 kk