IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 38437 of 2002(A) ---------------------------------- PETITIONER: ------------------- M/S.N.C.JOHN & SONS LTD., REPRESENTED BY DIRECTOR SRI.N.C.J.RAJAN, C/O. M/S.N.C.JOHN & SONS LTD., ALAPPUZHA. BY ADV. SRI.P.BALACHANDRAN, ADV. SMT.PREETHA S.NAIR. RESPONDENTS: ------------------------ 1. ASSISTANT COMMISSIONER OF (ASSESSMENT)II, COMMERCIAL TAXES, SPL.CIRCLE,ALAPPUZHA. 2. DEPUTY COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. 3. COMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM. BY GOVERNMENT PLEADER SRI. TEKCHAND. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 64937/2002 IN O.P. NO. 38437/2002-A DISMISSED 19/03/2008. SD/- P.R.RAMAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE NOTICE ISSUED BY THE R.1. DTD. 26/04/2000. EXT.P.2: COPY OF THE NOTICE ISSUED BY THE R.1. DTD. 08/06/2000. EXT.P.3: COPY OF THE REPLY FILED BY THE PETITIONER DTD. 26/06/2000. EXT.P.4: COPY OF THE ORDER OF THE ASSISTANT COMMISSIONER (ASSESSMENT) II, COMMERCIAL TAXES, SPL. CIRCLE, ALAPPUZHA. DTD. 26/04/2000. EXT.P.5: COPY OF THE ORDER OF THE DY. COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA DTD. 02/11/2000. EXT.P.6: COPY OF THE ORDER OF THE COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM DTD. 25/09/2002. EXT.P.7: COPY OF THE JUDGMENT IN O.P. 25898/2000-G DTD. 05/09/2000. EXT.P.7.A: COPY OF THE JUDGMENT IN O.P. 3642/2000-J DTD. 26/12/2000. EXT.P.8: COPY OF THE ORDER OF THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDL. BENCH, KOTTAYAM DTD. 27/03/2002. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.38437 of 2002-A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of March, 2008 J U D G M E N T The petitioner is an assessee under the K.G.S.T Act for the assessment year 1996-97 to 1999-00. Assessee filed return conceding purchase turnover of raw-rubber and rubber latex as below at 4% against 5% and 10% respectively for the years 1996- 97 and 1998-99 and at 5% on the purchase turnover of latex for 1999-2000. Admittedly, assessee was paying tax at the rate of 10% in the previous year of question. But during the relevant assessment year, assessee filed return and paid tax at reduced percentage as per S.R.O.No.372/1992, dated 31/03/1992, which came into force on 01/04/1992. The Government by exercises of the power under Section 10 of the K.G.S.T Act, 1963, reduced rate of tax from 10% to 4% in the case of purchase turnover of rubber by manufacturer for use in the manufacture of tyre, tubes, flaps within the State. However, this was superceded by another notification which came into effect from 01/04/1994, i.e. as per S.R.O.No.1728/1993. As per subsequent notification, the concession rate of tax available to a manufacturer of this type of O.P.No.38437 of 2002-A -: 2 :- manufacture is 5% as against 4% earlier fixed. According to the assessee, it is a bona fide mistake that the purchase tax was paid at 4% instead of 5% both in the case of purchase of the raw-rubber as well as latex. Admittedly, the rate of purchase tax payable by the assessee for latex is 10% and for raw-rubber 5% instead of 4%. The authorities below found that the assessee has failed to furnish true and correct return and imposed the penalty overruling the objection raised by the petitioner in this behalf. Revision and second revision also ended without success. Hence, this petition. 2. The learned counsel Smt.Preetha S.Nair appearing on behalf of the assessee strenuously contented before me that this is not a case of false return being filed or any return being filed with incorrect particulars to call it untrue or incorrect as per Section 45A(d) of the K.G.S.T Act, 1963. According to her, there is no suppression of any matter in filing the return as the entire turnover is disclosed. The dispute is however with regard to the payment of tax at reduced rate which is a bona fide dispute and when the mistake was discovered the petitioner subsequently corrected and paid the differential tax. There is no mens rea at all. O.P.No.38437 of 2002-A -: 3 :- 3. The learned Government Pleader on behalf of the State on the other hand submits that as per Section 45A(d) of the K.G.S.T Act, 1963, failure to furnish true and correct return is an offence which is punishable under the Act. True, bona fide dispute may not come within the embody of Section 45A(d) but here, the authorities below has found that the dispute is not bona fide. If so, there is no reason of interference by this Court. 4. Heard both sides. Admittedly, assessee was paying tax at higher rate of 10% in the previous year of question. All of a sudden, assessee claimed 4% purchase tax as per S.R.O.No.372/1992 based on which the consession is extended. If so, there cannot be any occasion to commit any mistake because for the assessment year 1996-97, the notification which was in force was notification No.1728/1993. There is no reason to go back and find some old notification and to say that there is a bona fide dispute. A notification which was never in force during the relevant time in question and based on the same there cannot be O.P.No.38437 of 2002-A -: 4 :- any dispute. There, the authority is right in saying that this is not a bona fide dispute. 5. As respect of the rubber backed coir mats are concerned, even according to the assessee, these were treated as coir products before the excise authorities. But, whereas considering levy of sales tax the assessee sought exemption claiming it as rubberised products. The authority below found that the rubber backed coir products are not rubber products for enjoying concessional rate of tax. Hence, it cannot be conceded to be a bona fide dispute. In the circumstances, the finding of the authority that there is no bona fide dispute cannot be said to be wrong or illegal. In the result, no grounds made out for interference of the orders impugned. Accordingly, original petition is dismissed. P.R.RAMAN, Judge ms O.P.No.38437 of 2002-A -: 5 :- P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.38437 of 2002-A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 19th March, 2008