HI-TEK TRADERS v. Commercial Tax Officer 1st Circle, Changanacherry; Commissioner of Commercial Taxes; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **WP(C).No.24000 OF 2014(Y)** ## **PETITIONER:** **HI-TEK TRADERS VAZHOOR ROAD, I E NAGAR (P.O.), CHANGANACHERRY, KOTTAYAM (DT), REPRESENTED BY JOYICHAN C.C., MANAGING PARTNER.** **BY ADVS. SRI.K.N.SREEKUMARAN SRI.P.D.UNNIKKANNAN NAIR** ## **RESPONDENTS:** **1 COMMERCIAL TAX OFFICER 1ST CIRCLE, CHANGANACHERRY, 686003. 2 COMMISSIONER OF COMMERCIAL TAXES TAX TOWER, KARAMANA, THIRUVANANTHAPURAM, 695001. 3 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 695001.** **BY GOVERNMENT PLEADER SMT.MM JASMINE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-112019, ALONG WITH WP(C).11004/2016(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) Nos.24000/14 & 11004/16 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **WP(C).No.11004 OF 2016** ## **PETITIONER/S:** **HI-TEK TRADERS AGED 50 YEARS VAZHOOR ROAD, I E NAGAR (P.O), CHANGANACHERRY, KOTTAYAM (DT) REPRESENTED BY JOYICHAN C.C, MANAGING PARTNER.** **BY ADVS. SRI.K.N.SREEKUMARAN SMT.V.P.SEENA DEVI** ## **RESPONDENT/S:** **1 COMMERCIAL TAX OFFICER 1ST CIRCLE, CHANGANACHERRY-686 534. 2 COMMISSIONER OF COMMERCIAL TAXES TAX TOWER, KARAMANA, THIRUVANANTHAPURAM - 695 001. 3 STATE OF KERALA REPRESNTED BY CHIEF SECRETARYTO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** ## **OTHER PRESENT:** **GP MM JASMINE** W.P(C) Nos.24000/14 & 11004/16 3 **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-112019, ALONG WITH WP(C).24000/2014(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) Nos.24000/14 & 11004/16 4 **(CR)** ## **JUDGMENT** As both these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. 2. The petitioner is a dealer in tread rubber, who was registered under the Kerala Value Added Tax Act and Central Sales Tax Act on the rolls of the 1[st] respondent during the relevant period. The petitioner, as part of his business operations, used to purchase tread rubber from manufacturers within the State having valid TIN registration and thereafter re-sell the tread rubber to unregistered dealers outside the State through interstate sales effected by him. By Ext.P1 notification dated 31.7.2008, the State Government exempted the tax payable under sub-section 1 or 2 of Section 8 of the CST Act on the turnover of sale of natural rubber and tread rubber in the course of inter-state trade, subject to the condition that the natural rubber or the compounded rubber that was used in the production of tread rubber had suffered tax under the Kerala Value Added Tax Act, 2003. It is not in dispute in the instant case that the petitioner obtained the benefit of Ext.P1 notification in respect of the interstate sales of tread rubber effected by him for the assessment years from 2008-2009 to 2013-2014. While so, by Ext.P8 notification dated 30.11.2011, the State Government confined the benefit of exemption under Ext.P1 notification to only those interstate sales of tread rubber as complied with the requirements in Section 8(4) of the CST Act, which mandated that the concessional rate of tax under the CST Act would not apply to any interstate sale where the selling dealer did not furnish the declaration in C-form to the assessing authority. In other words, W.P(C) Nos.24000/14 & 11004/16 5 through Ext.P8 notification, the benefit of exemption that was earlier granted to the petitioner assessee was taken away on the ground that the petitioner assessee had not effected sales to registered dealers under the CST Act. The assessments of the petitioner assessee for the assessment years 2008-09 to 2013-14 were, therefore, completed by denying him the benefit of exemption under Ext.P1 notification, by placing reliance on Ext.P8 notification dated 30.11.2011, and extending the rationale of the said notification retrospectively from the date of Ext.P1 notification. The aforesaid assessment orders are impugned by the petitioner assessee in these writ petitions, where W.P.(C) No.24000 of 2014 impugns the assessment orders for the years 2008-2009 to 2012-2013 and W.P.(C) Nos.11004 of 2016 impugns the assessment orders pertaining to assessment years 2013-2014. 3. The learned counsel for the petitioner would rely on the decision of a single Judge of this Court in **Moly Eldhose v. Additional Sales Tax Officer 1, Perumbavoor and others [(2010) 27 VST 39 (Ker.)]** to point out that in almost similar circumstances that arose under the Kerala General Sale Tax Act, where a notification had been issued in 1993 granting exemption to Khadi and Village Industrial units recognised by the Kerala Khadi and Village Industries Board, in respect of interstate sales effected by them, and the benefit of exemption was sought to be denied based on the amendments brought about to Section 8(5) of the CST Act with effect from 11.05.2002, this Court found that the subsequent amendment to Section 8(5) of the Act could not be made applicable to dis-entitle the assessee for the exemption claimed in terms of the 1993 notification. In particular, it was found that the assessee would not be in a position to secure C-form declarations W.P(C) Nos.24000/14 & 11004/16 6 pertaining to a period prior to the date of amendment of Section 8(5) and therefore he could not be denied the benefit of exemption merely on account of a subsequent amendment brought in to the statute. 4. A counter affidavit has been filed on behalf of the 2[nd] respondent wherein it is stated that Ext.P8 notification was issued to correct an inherent illegality that had been occasioned while issuing Ext.P1 notification dated 31.7.2008. It is stated that as on the date of issuance of Ext.P1 notification itself, the State Government did not have the power under Section 8(5) of the CST Act, as it then stood, to grant an exemption in public interest in cases where the interstate sales effected by a dealer within the State was to an unregistered dealer outside the State. It is stated therefore that Ext.P1 notification itself had to be seen as ultravires the CST Act and therefore the petitioner could not claim the benefit of any right flowing from such a notification. Ext.P8 notification, it is submitted, has to be seen as one correcting the illegality in Ext.P1 notification, and making the condition, requiring an interstate sale to a registered dealer, a pre-requisite for claiming the benefit of exemption under the earlier notification dated 30.7.2008. 5. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 6. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find force in the submission of the learned Government Pleader with regard to the inherent illegality in Ext.P1 W.P(C) Nos.24000/14 & 11004/16 7 notification that granted the benefit of exemption to the petitioner in the instant cases. It is not in dispute that as per the provisions of Section 8(5) as it then stood, the State Government had a power to grant exemption in public interest in respect of the tax to be paid on interstate sales, only in respect of those sales that were effected to registered dealers outside the State of Kerala. Ext.P1 notification, admittedly, did not make a distinction between sales to registered dealers and unregistered dealers outside the State and it is therefore that the petitioner was able to claim the benefit of exemption in terms of Ext.P1 notification. When it was noticed that Ext.P1 notification was beyond the powers of the State Government, Ext.P8 notification was introduced so as to remove the illegality in Ext.P1 notification. Inasmuch as the illegality is one that stems from an exercise of power contrary to the provisions of the parent statute (the CST Act), the petitioner cannot contend that the respondents are estopped from withdrawing the benefits conferred through Ext.P1 notification. It is trite that there cannot be an estoppel pleaded against the express provisions of a statute. I therefore find that the petitioner cannot take advantage of any benefit that was conferred on him through Ext.P1 notification, when the very benefits have been taken away, on account of the statutory mandate through Ext.P8 notification. The aforesaid legal position also serves to distinguish the decision relied upon by the petitioner and to hold that the said decision is wholly inapplicable to the facts in the instant cases. The challenge to the retrospective operation of Ext.P8 notification, that only cured the illegality in the earlier notification, cannot be legally sustained and is hereby rejected. For the assessment years 2012-13 and 2013-14, it is apparent that by virtue of Ext.P8 notification itself the petitioner could not have claimed the benefit W.P(C) Nos.24000/14 & 11004/16 8 of Ext.P1 notification in respect of interstate sales effected to unregistered dealers. 7. Learned counsel for the petitioner would submit that, even if the benefit of exemption is denied to the petitioner, in the assessments that were completed against him for the aforementioned years, the petitioner should at least be granted the benefit of set off of input credit against the output tax paid in respect of the interstate sales effected by him. I find force in the said contention of the learned counsel for the petitioner and direct that, in the fresh orders to be passed by the respondent assessing authority, pursuant to the findings in this judgment, the assessing authority shall consider the returns filed by the petitioner, and take note of the tax paid by the petitioner on the purchase of inputs relatable to the tread rubber sold interstate to unregistered dealers, and allow a set off of the same while finalising the assessments. To enable the respondent assessing authority to do so, I set aside the impugned assessment orders, and direct the assessing authority concerned to re-do the assessment as above, within a month from the date of receipt of a copy of this judgment, after hearing the petitioner. To enable the respondent assessing authority to do so, I direct the petitioner to appear before the assessing authority on 27.11.2019. The assessing authority shall ensure that fresh assessment orders are passed within the time granted in this judgment so as to enable the petitioner assessee to avail the benefit of the Amnesty Scheme, if he so desires. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** //True copy// P.S. to Judge okb W.P(C) Nos.24000/14 & 11004/16 9 ## **APPENDIX OF WP(C) 24000/2014** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SRO 804/2008 DATED 31.7.2008. EXHIBIT P2 TRUE COPY OF THE ANNUAL RETURN FOR 2008-09 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ANNUAL RETURN FOR 2009-10 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ANNUAL RETURN FOR 2010-11 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ANNUAL RETURN FOR 2011-12 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE ANNUAL RETURN FOR 2012-13 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P7 TRUE COPIES OF THE NOTICES DATED 8.7.2014 ISSUED U/S 6(5) OF THE CST ACT FOR 2008-09 TO 2012-13. EXHIBIT P8 TRUE COPY OF SRO 753/2011 DATED 30.11.2011. EXHIBIT P9 TRUE COPY OF CIRCULAR NO.17/2013 DTD.5.10.13. EXHIBIT P10 TRUE EXTRACT OF THE BUDGET SPEECH OF THE HON'BLE FINANCE MINISTER FOR 2013-14. EXHIBIT P11 TRUE COPY OF THE STATEMENT OF INVOICE WAR PURCHASES FOR 2008-09 TO 2012-13. EXHIBIT P12 TRUE COPY OF THE COMMON REPLY DATED 30.7.2014 FILED BEFORE THE 1ST RESPONDENT PURSUANT TO EXT.P7. EXHIBIT P13 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.7.2014 FOR 2008-09 ISSUED BY THE 1ST RESPONDENT.** W.P(C) Nos.24000/14 & 11004/16 10 **EXHIBIT P14 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.7.2014 FOR 2009-10 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P15 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.7.2014 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.7.2014 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P17 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.7.2014 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT.** W.P(C) Nos.24000/14 & 11004/16 11 ## **APPENDIX OF WP(C) 11004/2016** **PETITIONER'S/S EXHIBITS:** **EXHIBIT.P1: TRUE COPY OF SRO 804/2008 DATED 31.7.2008. EXHIBIT.P2: TRUE COPY OF THE ANNUAL RETURN FOR 2013-14 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT.P3: TRUE COPY OF THE NOTICE DATED 15.12.2015 ISSUED U/S.6(5) OF THE CST ACT FOR 2013-14 BY 1ST RESPONDENT. EXHIBIT.P4: TRUE COPY OF SRO 753/2011 DATED 30.11.2011. EXHIBIT.P5: TRUE COPY OF CIRCULAR NO.17/2013 DTD 5.10.13. EXHIBIT.P6: TRUE EXTRACT OF THE BUDGET SPEECH OF THE HON'BLE FINANCE MINISTER FOR 2-13-14. EXHIBIT.P7: TRUE COPYP OF ORDER DATED 30.9.2014 & 22.1.2016 IN WPC 24000/2016 OF THIS HON'BLE COURT. EXHIBIT.P8: TRUE COPY OF THE REPLY DATED 5.1.2016 FILED BEFORE THE 1ST RESPONDENT PURSUANT TO EXT.P3. EXHIBIT.P9: TRUE COPY OF THE ASSESSMENT ORDER NO.32050756967/2013-4 DATED 1.2.2016 ISSUED BY THE 1ST RESPONDENT.**