IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 RP.No. 139 of 2010 () -------------------- ( AGAINST THE JUDGEMEN IN STRV.93/2007 Dated 24/02/2009 ) .................... REVIEW PETITIONER/REVISION PETITIONER: -------------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER, SRI.MUHAMMED RAFFIQUE RESPONDENT/RESPONDENT: ----------------------------------------- M/S.HYMA JEWELLERS, MAIN ROAD, ATTINGAL. BY ADVS. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK C.N.RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ R.P.NO: 139 OF 2010 in S.T.Rev.No: 93 of 2007 ----------------------------------------------------------- Dated this the 27th September, 2010. O R D E R Ramachandran Nair, J. The review petition is filed for reviewing judgment in STRV 93/2007 which was filed by the State challenging the order of the Tribunal for the assessment year 1998-99. The question raised in the review petition filed by the State was whether the respondent- assessee is liable to pay tax at compound rate under Section 7(1) (a) of the KGST Act by reckoning purchase tax liability under Section 5A also. The revision case was disposed of along with two other revisions filed by the State against the same assessee for the assessment years 1999-2000 and 2000-01. Taking note of the amendment by which explanation was introduced to Section 7(1) (a) with effect from 1.4.1999 we allowed the revisions for the latter two years holding that tax at compound rate under Section 7(1)(a) is payable by taking into account the liability under Section 5A also for the previous year. However, the question raised by the State that the amendment is only clarificatory and even under the main provisions contained in Section 7(1)(a) “tax payable under the Act R.P.139/2010 2 includes tax payable under Section 5A also” was not considered by us in the judgment. 2. Govt. Pleader has today produced before us the judgment of this Court in State of Kerala v. N. Gopalakrishnan reported in 138 STC 536 wherein one of us (C.N.Ramachandran Nair, J) was a party. It is clearly held in that decision that explanation added to Section 7(1)(a) was clarificatory in nature and even for the period prior to the introduction as the explanation, position is the same and therefore, respondent would be liable to pay tax at compound rate for 1998-99 also by reckoning 5A liability of the preceding year. Since the scope of the amendment though raised was not considered and the law declared by this Court by an earlier decision was also not taken note of by this Court, we feel the mistake in the judgment warrants correction. We therefore allow the review petition by recalling the judgment in STRV 93/2007. C.N.RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj R.P.139/2010 3 R.P.139/2010 4