IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 6707 of 2004(W) ------------------------- PETITIONER(S): --------------- NEW TRADERS, POLICE STATION ROAD, SULTHAN BATHERY, REPRESENTED BY ITS MANAGING PARTNER, SRI.K.MOHAMMED. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.MANOJ KUMAR.M RESPONDENT(S): --------------- 1. THE ADDL. AGRL. INCOME TAX AND SALES TAX OFFICER, SULTHAN BATHERY, WAYANAD. 2. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. MOHAMMED RAFIQ FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE SRO NO.1071/2001 DATED 3.12.2001 EXT.P2 TRUE COPY OF THE ORDER IN CMP 16136/99 IN OP 9836/99 DATED 9.4.99 OF THIS HON'BLE COURT. EXT.P3 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE FIRST RESPONDENT FOR THE YEAR 1998-99 DATED 28.5.2002 EXT.P4 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 1.12.2003 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 6707 OF 2004 -------------------------------------------- Dated this the 17th day of June, 2009 JUDGMENT Petitioner, a dealer in coffee, has filed this WPC for direction to the first respondent to grant refund of Rs. 43,011/- based on Ext.P4 order. However, Government Pleader submitted that under SRO 1071/2001 dated 3.12.2001 petitioner is not entitled to refund because tax paid cannot be refunded under the notification, even though exemption may be available to the petitioner. Petitioner's case is that payment of tax was under interim orders of this Court issued during appeal against assessment order and so much so tax paid was under protest and therefore petitioner is not covered by the notification. I find force in this contention because Finance Bill 1998 proposed to shift the point of levy of tax on coffee from first sale point to last sale point. However, when the bill was passed into an Act on 29.7.1998, the proposal was given up retaining the incidence of tax on coffee at the point of first purchase itself. Further, almost three years after introduction of finance bill, Government issued above referred SRO 2 granting exemption on first purchase of coffee for sale to Exporters. Petitioner's case is that entire coffee purchased during this period was sold to Exporters and petitioner in fact produced Form 18A. However, on going through Ext.P3 assessment I notice that for the period from 1.4.1998 to 28.7.1998 exemption is granted based on form 18A. Strangely no other turnover for the remaining period is seen to have been assessed. This is very strange because exemption based on Form 18A is not based on notification. Export sale of coffee takes place on a steady basis and it is not seasonal. Moreover the assessing officer has not apparently considered the correctness of contents in Form No.18A and the accompanying documents such as shipping bills. He just accepted Form No.18A and excluded the turnover covered by the same. Since there is no turnover covered by Form No.18A after the relevant date that is 28.7.1998 I dispose of the Writ Petition with direction to the assessing officer to verify the records and go through Form No.18A and connected documents to find out whether claims are genuine and call for explanation from the petitioner as to why there is no sale to Exporters after July, 28,1998. The assessing officer should also 3 examine assessments of previous and subsequent years pertaining to sales to Exporters to find out whether the pattern of business is unique for this year alone. If Form No.18A and connected documents are found to be genuine, then there will be direction to the assessing officer to grant refund of the tax paid without any interest because recovered tax under notification cannot be refunded, but refund is granted because payments were made under interim orders of this Court. (C.N. RAMACHANDRAN NAIR) Judge kk 4