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 MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 S.T.Rev..No. 276 of 2008 --------------- ------------------------- ORDER DATED 5.5.2007 IN TA.226/2005 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL BENCH, KOTTAYAM) .................... PETITIONER/APPELLANT/ASSESSEE: ----------------------------------------------------- M/S. MULAMOOTIL TRADING COMPANY, KOZHENCHERRY, PATHANAMTHITTA, REPRESENTED BY ITS PROPRIETOR, MR. JACOB THOMAS. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT/RESPONDENT/REVENUE: ---------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- C.M.Appln. No.898 of 2008 & S.T.Rev.No.276 of 2008 ------------------------------------------ Dated, this the 29th day of September, 2008 ORDER H.L.Dattu, C.J. Sri.Muhammed Rafiq, learned Government Advocate, is directed to take notice for the respondent. (2) After hearing the learned counsel for the parties, we are of the opinion, that the delay in filing the revision petition requires to be condoned and accordingly it is condoned. (3) Heard Sri.V.Philip Mathews, learned counsel appearing for the petitioner, and Sri.Muhammed Rafiq, learned Government Advocate, appearing for the State government. (4) The facts in brief are:- The assessee is a proprietary concern engaged in the business of selling hardwares, sanitary items, paints, etc. Petitioner is also a dealer registered both under the provisions of the Kerala General Sales Tax Act, 1963 ('KGST Act' for short) and the Central Sales Tax Act, 1956 ('CST Act' for short). (5) In the annual returns filed for the assessment year 2002-03, the petitioner had made two claims, firstly, that he has purchased certain goods worth Rs.2,32,387/- from M/s. Paint Palace, Kozhencherry, and the sales effected by them are second sales and therefore, eligible for exemption under S.T.Rev.No.276 of 2008 2 KGST Act, and secondly, for deduction towards the return of the goods worth Rs.40,655/- from total and taxable turnover. Both these claims are rejected by the assessing authority, firstly on the ground that the purchases effected by the petitioner is from an unregistered dealer and, therefore, the petitioner cannot claim the sales turnover of Rs.2,32,387/- as second sales. In so far as the claim for deduction towards sales returns, the assessing authority is of the opinion that the said returns were not done within six months as contemplated under Rule 9 of the Kerala General Sales Tax Rules ('the Rules' for short). (6) The assessee being aggrieved by the assessment order had unsuccessfully filed first appeal as well as second appeal before the first appellate authority and the appellate Tribunal, respectively. (7) The assessee being aggrieved by the orders of the Sales Tax Appellate Tribunal in T.A.No.226 of 2005 dated 5th May, 2007 is before us in this sales tax revision. (8) The assessee has framed the following questions of law for our consideration and decision. They are as under: “i) Whether on the facts and in the circumstances of the case and in the light of Annexure-B the Appellate Tribunal is right in holding that the Petitioner is not entitled to exemption from sales tax on the sales for the year 2002-03? ii) Whether the decision of this Hon'ble Court in S.T.Rev.No.276 of 2008 3 E.M.Purushotham Vs State of Kerala (2003) 11 KTR 140 is applicable to the case in hand and whether that decision law down the correct law? (9) The admitted facts are:- The assessee had purchased certain goods from M/s. Paint Palace. Admittedly, the said dealer was not a registered dealer as on the date of purchase. The purchases so effected by the assessee is sold to the customers. The assessee had claimed a sum of Rs.2,32,387/- towards purchases from M/s. Paint Palace as second sales. (10) In our opinion, for claiming second sales, the assessee must have purchased the goods from a registered dealer under the KGST Act. The concurrent finding is there on this aspect of the matter both by the assessing authority as well as by the first appellate authority and the Tribunal. They are of the opinion that M/s. Paint palace was not a registered dealer and, therefore, the assessee is not entitled for the claim of second sales in a sum of Rs.2,32,387/-. In view of this concurrent findings which we are in full agreement, the first ground urged by the learned counsel for the petitioner has no merit and accordingly the same requires to be rejected. (11) In so far as the returned goods is concerned, under the Rules the deduction can be allowed only if the dealer has returned the goods to his purchaser within six months from the date of delivery of the goods. In the instant case, there is a finding by all the authorities under the Act that the S.T.Rev.No.276 of 2008 4 goods were returned only after six months. Since the assessee has not complied with the condition prescribed under Rule 9 of the Rules, in our opinion, the assessing authority was justified in rejecting the aforesaid claim also. (12) Having gone through the orders passed by the Tribunal, we are of the opinion, that, the reasoning and conclusion reached by the Tribunal is neither arbitrary nor erroneous, or they have failed to decide or erroneously decided the question of law raised in the appeal. In that view of the matter, we decline to entertain this revision petition. (13) Therefore, while rejecting this revision petition we answer the questions of law framed by the assessee against the assessee and in favour of the Revenue. (14) Consequently, I.A.No.2157 of 2008 also stands rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk