IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WA.No. 2874 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23569/2009 Dated 07/10/2009 .................... APPELLANT(S): -------------- THE SALES TAX OFFICER, COMMERCIAL; TAXES, II CIRCLE, KOZHIKODE. BY GOVERNMENT PLEADER SRI. MOHAMMED RAFIQ RESPONDENT(S): --------------- KERALA CURRY HOUSE, CANAL ROAD, ERAJIPALAM, CALICUT 6, REPRESENTED BY ITS MANAGINGPARTNER, BINU GEORGE, S/O. T.K. GEORGE. BY ADV. SRI. R. RAMADAS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W. A. No. 2874 OF 2009 -------------------------------------------- Dated this the 23rd day of December, 2009 JUDGMENT Ramachandran Nair, J. This Writ Appeal is filed against the judgment of the learned single Judge declaring eligibility of the respondent for getting registration under the Kerala Value Added Tax Act from the date of commencement of business which is 1.4.2007. We have heard Government Pleader appearing for the appellant Sri. R. Ramadas, counsel appearing for the respondent. 2. The respondent though started business on 1.4.2007 did not apply for registration under the KVAT Act during the year 2007-08. However, on 19.5.2008 an application for registration was filed wherein the date of commencement of business was declared as 1.4.2008. The department on finding that respondent had carried on business during the year 2007-08 without registration collected 2 compounding fee of Rs. 31,278/- for carrying on business without registration. After offence is compounded the respondent made an application for correction of the application filed for registration to substitute date of commencement of business from 1.4.2008 given in the application to 1.4.2007, which is the date of actual commencement of business. The learned single Judge held that respondent is eligible to get retrospective registration from the date of commencement of business, which is 1.4.2007 against which this Writ Appeal is filed. 3. Section 16(2) of the Act prior to the amendment provided that registration will take effect from the date of filing of the application for registration. However, later the proviso to Section 16(2) was substituted by the following provision: Provided that registration shall be deemed to have been granted with effect from the date of commencement of business irrespective of the date of application, for the purposes of,- (a) paying tax under sub-section (5) of section 6, subject to eligibility, and (b) opting for payment of tax under section 8 for the relevant years subject to eligibility: Provided further that new dealers applying for registration and existing dealers having registration may avail this benefit subject to the condition that they shall pay 3 tax under the respective provisions along with interest and will not be entitled for any refunds relating to the period prior to filing of application for registration: Provided also that in the case of dealers against whom an offence has been detected under section 67 of the Act before filing application for registration, registration shall be granted under this sub-section subject to the finalisation of the proceedings in respect of the offence so detected. The above amendment became effective with effect from 1.4.2009 whereas respondent was already granted registration on 24.9.2008 which was with effect from 1.4.2008. It is this certificate of registration which the respondent wanted to rectify for the purpose of getting registration entered with effect from 1.4.2007. Government Pleader appearing for the appellant submitted that respondent is not entitled to apply for amendment of certificate of registration because new proviso which came into force on 1.4.2009 cannot be considered while considering respondent's application for registration for the year 2008-09. Even though we are in agreement with this contention we notice that retrospective registration under the above proviso substituted with effect from 1.4.2009 is a facility available by virtue of operation of the said statutory provision and is not required to be 4 granted by the assessing officer. All what the new proviso says is that registration granted will have retrospective effect from the date of commencement of business only for the purpose of clauses (a) and (b) of the said proviso. On going through these provisions we find that proviso entitles an eligible dealer to pay tax on presumptive basis under Section 6(5) of the Act and also dealers eligible for payment of tax under section 8, no matter during that year the dealer was carrying on business without registration. Respondent would have applied for registration with effect from 1.4.2007 on account of mis-apprehension that the Officer has to grant retrospective registration for the purpose of availing benefit under Section 6(5) and Section 8 of the Act. However, retrospectivity for registration available to a dealer by virtue of the proviso above referred is unaffected by any order passed by the officer. In other words, even if registration has not been applied for retrospectively or granted retrospectively, still the presumption is available under the new proviso for the dealer to pay tax if the dealer so wants under Section 6(5) and Section 8 of the Act. Subject to this limited benefit conferred under clauses (a) and (b) of the proviso, a dealer has no right to claim retrospective registration by making an 5 application for correction of certificate of registration. Further even without correction of certificate of registration, presumption under the new proviso will be available to the dealer for the limited purpose mentioned in clauses (a) and (b) thereto. In this case, respondent has even compounded the offence of carrying on business without registration during the year 2007-08 and in fact assessment is also completed. Therefore, in our view, there is no justification for the respondent to apply for correction of application for registration for obtaining registration with retrospective effect which cannot be granted at all. We therefore dispose of the Writ Appeal by modifying the judgment as follows: In view of the registration obtained with effect from the date of making application, respondent would be entitled to be treated as registered dealer from the date of commencement of business that is 1.4.2007 for the limited purposes of payment of presumptive taxes under Section 6(5) or tax payable under compounded rate under Section 8 because of the operation of clauses (a) and (b) to the proviso to Section 16(2) of the Act. We also declare that dealers claiming benefit under the new provision will also be subject to the limitation 6 contained in the second proviso to Section 16(2) of the Act. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 7