IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 ST.Rev..No. 333 of 2004 ----------------------------------------- (ORDER DATED 30-4-2003 IN TA.131/2003 OF KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH PALAKKAD) .................... REVISION PETITIONER/APPELLANT: --------------------------------------------------- MODERN ARECANUT COMPANY, ARECANUT COMMISSION AGENTS, KOKKALAI, THRISSUR. BY ADV. SRI.N.D.PREMACHANDRAN SRI.NAVIA SEBASTIAN RESPONDENT: RESPONDENT: ------------------------------------------- STATE OF KERALA. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------------------ S.T.Rev.No.333 of 2004 --------------------------------------------- Dated, this the 24th day of July, 2008 O R D E R H.L.Dattu, C.J. The assessee calls in question the correctness or otherwise of the orders passed by the Tribunal in T.A.No.131 of 2003 dated 30-4-2003. 2. The assessee has framed the following questions of law for our consideration and decision. They are as under: a). Whether on the facts and circumstances of the case the Tribunal is right in law in the light of the provisions contained in Annexure.A notification hold that the assessee is not entitled to refund of the tax already paid and if wrongly refunded the same can be recovered from the petitioner? b. Whether on the facts and circumstances of the case the Tribunal has erred in law in denying to the petitioner the benefit of tax reduction granted by Annexure A notification for the reason that the assessee has paid the tax at the due date from his own pocket without collecting the tax from his customers? c). Whether on the facts and circumstances of the case the Tribunal failed to consider the fact that the petitioner has not collected any tax and whatever amount paid towards tax is from his own pocket and the ban provided in the notification is not applicable at all on a time interpretation of Annexure A notification? S.T.Rev.No. 333/2004 -2- d). Whether on the facts and circumstances of the case, the Tribunal is right in law in following the decision of the Hon'ble High Court in W.A.No.49 of 2003, at a time when the SLP is pending before the Hon'ble Supreme Court? 3. In our view, the questions of law framed by the assessee is no more debatable in view what has been said by a Division Bench of this Court in the case of Kokkala Arecanut Commission Agent Association Vs. The Commissioner of Commercial Taxes {2003 (11) KTR 316}. In the said decision this Court has held as under: “ It is not an incident for the liability to tax that the tax should be collected by a dealer. In respect of goods which are taxable at the point of first sale in the State by a dealer liable to tax under Section 5 by virtue of the provision of Section 22 of the Act such dealer can collect tax on his sale. Whether the dealer collects tax or not, he has to pay tax on his taxable turnover. In the case of a dealer, whose transaction is liable to tax only at the last point of purchase, there is no question of collection of tax by that dealer from anybody on that point. In spite of that he has to pay tax on his taxable turn over. So, the collection of tax is not relevant, so far as the liability is concerned. The notification is very clear that it clearly provides that if the dealer has already paid tax, it shall not be refunded. Admittedly the appellants have paid tax on their purchase turnover, at the time of issuance of the notification, and therefore, in view of this clause, they are not entitled to get refund of the excess tax paid. It is a well-recognized cannon in the interpretation of statutes that the question of interpretation of statute, rule or notification arises only when the statutory provision is S.T.Rev.No. 333/2004 -3- ambiguous. The Act in question is a taxing statute and, therefore, must be interpreted as it reads, with no additions and no subtractions, on the ground of legislative intendent or otherwise. The task of the court is to construe the provisions of taxing enactments according to ordinary and natural meaning of the language used and then to apply that meaning to the facts of the case and int hat process if the tax-payer is brought within the net he is caught, otherwise he has to free” The clarification issued by the Commissioner of Commercial Taxes, has clearly stated that the intention of the notification is very clear that the retrospective operation given to the reduction of the rate of tax shall not result in any outflow of money from the Government exchequer. It is also stated that if the argument of counsel for the appellants that the last paragraph of the notification is applicable only in the case of dealers, who have collected tax and paid to the Government, is accepted, it will lead to discriminating dealers paying tax at the point of sales against dealers who are paying tax at the point of purchase, attracting article 14 of the Constitution of India. There is no justification for reading the two clauses of the last paragraph of the notification in conjunction. A reading of those clauses itself will show that it contemplates two different situations. One regarding the tax collected, and the other regarding the tax paid. Unless we read into the latter clause the word “collected” occurring in the first clause, the appellants cannot succeed in their case. Reading into the latter clause the word “collected”, when that clause does not warrant such an interpretation is not justified.” 4. In view of the declaration of the law made by the Division Bench of this Court which has become final as far as this Court S.T.Rev.No. 333/2004 -4- is concerned, the questions of law framed by the assessee requires to be answered against the assessee and in favour of the Revenue. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS