IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 ST.Rev..No. 394 of 2006() ------------------------- TA.301/2004 of S.T.A.TRIBUNAL,ADDL.BENCH,KOZHIKODE. .................... REVISION PETITIONER/RESPONDENT/REVENUE: ----------------------------------------------------------- STATE OF KERALA, REP. BY JOINT COMMISSIONER (LAW) IN-CHARGE, COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRI.MOHAMMED RAFIQ RESPONDENT/APPELLANT/ASSESSEE: ------------------------------------------- M/S. ANDAMANS TIMBER INDUSTRIES LTD., ERANHOLI P.O., THALASSERY. ADV. SRI.M.SASINDRAN THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 17/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY, Ag.CJ & V.K.MOHANAN, J. ================================ S.T.Rv.No.394 of 2006 =============================== Dated this the 17th day of December, 2008. O R D E R KOSHY, Ag.CJ. The question raised before the appellate authority was that the assessment of return under Section 5A is in order. Section 5 (a) reads as follows: “(1) Every dealer who in the course of his business purchases from a registered dealer or from any other person any goods, the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable under sub Sections (1), (3) (4) or (5) of Section 5 and either consumes such goods in the manufacture of other goods for sale or otherwise or uses or disposes of such goods in any manner other than by way of sale in the State or despatches them to any place outside the State except as a direct result of sale or purchase in the course of interstate trade or commerce, shall whatever be the quantum of the turnover relating to such purchase for a year pay tax on the taxable turnover relating to such purchase for the year at the rates mentioned in Section 5. (2) Notwithstanding anything contained in Sub Section (1), a dealer other than a casual trader or agent or a non-resident dealer purchasing goods, the sale of which is liable to tax under Section 5, shall not be liable to pay tax under sub Section (1) if his total turnover for a year is less than two lakhs rupees.” 2. Tribunal found that from the provision it is clear that liability under Section 5A would fall only in circumstances which is S.T.Rv.No.394 of 2006 2 not payable to sub Sections 1, 3, 4 and 5 of Section 5. Since the appellant has filed an appeal, Tribunal found as follows: “Here in this case the appellant has filed the address of the sellers from whom the appellant have effected purchases during the year under dispute. More over the records reveal that the entire payments were made through cheques. Verification of the records reveal that the turnover of the suppliers in all cases were above the assessable limit. Therefore the liability under Section 5 (1) cannot be shifted to the appellant by levying tax under Section 5A. considering all the above facts we are of the view that assessment on the appellant under Section 5A is illegal and liable to be cancelled”. 3. We are of the opinion that the transactions are made through cheques and records revealed that the turnover of the suppliers in all cases were above assessable limit. Tribunal perused the entry of transactions and came to the conclusion on the basis of finding of fact. We see that no question of law is involved and hence this revision is dismissed. J.B.KOSHY, ACTING CHIEF JUSTICE V.K.MOHANAN, JUDGE bkn/-