T.V. Vipin v. The Commercial Tax Officer, Ettumanoor

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** ## **WP(C) NO. 35312 OF 2017** ## **PETITIONER:** T.V.VIPIN M/S KARIALI STOCK SUPPLIERS,PERUMBALAKAD, KOTTAYAM BY ADVS. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN ## **RESPONDENTS:** 1 COMMERCIAL TAX OFFICER KASARAGOD- 671 121. [CORRECTED][CAUSE TITTLE OF R1 IS CORRECTED AS "THE COMMERCIAL TAX OFFICER, ETTUMANOOR" INSTEAD OF THE COMMERCIAL TAX OFFICER, KASARGODE AS PER ORDER DATED 24/11/2017 IN IA.NO.18873/2017.] 2 INSPECTIGN ASST. COMMISSIONER COMMERCIAL TAXES, KOTTAYAM- 686 001 ## **OTHER PRESENT:** SMT. JASMINE M.M-GP **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.No. 35312 of 2017 2 ## **'CR'** # **SHOBA ANNAMMA EAPEN, J** **…............................................. W.P.C.No. 35312 of 2017** **….................................................................. Dated this the 19[th] day of September, 2022** ## **JUDGMENT** The petitioner has filed this writ petition with the following prayers; _“A. Issue a writ of certiorari quashing all attempts to collect the alleged arrears of tax for the year 2011-12 demanded as per Ext.P1 assessment order and Ext.P4 RR notice._ _And_ _B. To grant such other reliefs as this Honourable Court may deem fit and proper to grand in the circumstances of the case.”_ The brief facts of the writ petition are as follows: 2. The petitioner, a dealer in Ujala Supreme and Ujala Stiff & Shine, is an assessee under the Kerala Value Added Tax Act, 2003, (for short 'KVAT Act') on the rolls of the 1[st] respondent, Commercial Tax Officer, Ettumanoor and is W.P.C.No. 35312 of 2017 3 aggrieved by the revenue recovery steps initiated by the 2[nd] respondent for collection of arrears due for the year 2011-12. 3. The assessment for the year 2011-12, in respect of the petitioner under Section 25(1) of the KVAT Act, was completed as per Ext.P1 order, applying the rate of tax at 12.5% against the conceded rate of 4%. 4. The petitioner took Ext.P1 order before the First Appellate Authority as well as before the Tribunal, which resulted in dismissal. Thereafter, the petitioner filed O.T.Rev.No.231/2014 before this court, which was also dismissed. The dispute regarding the correct rate of tax applicable to 'Ujala Supreme' and 'Ujala Stiff & Shine' existed with the manufacturers as well as the dealers. According to the dealers, the rate of tax applicable was 4% / 5% and according to the assessing Authority, the rate of tax applicable is 12.5%/ 13.5% / 14.5%. Several assessees including the manufacturers challenged the assessments through various forums and finally it was held by the the Apex Court in _**MP Agencies v. State of Kerala [2015] 23 KTR 367 [SC]**_ that the correct rate of tax on W.P.C.No. 35312 of 2017 4 the sale of ujala is only 4%/5%. However it was made clear that the persons, who remitted tax more than 4%/5%, are not entitled to refund the excess tax paid. 5. The petitioner did not pursue the matter further before the Hon'ble Supreme Court. Since an amount of Rs.4,18,645/- was remaining unpaid, the second respondent initiated the revenue recovery steps as per Exts. P3 and P4 notices, on the advice of the first respondent for recovery of the above amount along with penal interest. Aggrieved by Exts.P3 and P4, the petitioner has filed this writ petition. 6. I have heard the learned counsel for the petitioner as well as the learned Government Pleader. 7. The learned counsel for the petitioner submits that the conceded rate of tax of 4% was remitted by the petitioner and it was further submitted that the Apex Court in _**MP Agencies (supra)**_ has declared the rate of tax as 4% / 5%, observing thus: W.P.C.No. 35312 of 2017 5 _“Consequently, the appeals are allowed and the judgment and orders are set aside with the stipulation that none of the assessee/appellant would be entitled to refund........”_ 8. The learned counsel for the petitioner further submits that in Article 265 of the Constitution of India, it is stated that no tax shall be levied or collected except by authority of law and it was thus held in _**Delta Paper Mills Ltd. v. Collector of Central Excise, Guntur [1995 (77) E.L.T. 544**_ _**(A.P)].**_ In short, Article 265 comprehends the levy of tax, quantification of tax and collection of tax. For a tax to be imposed, it requires the concurrence of taxable event to trigger the levy and a taxable person to discharge it. The learned counsel for the petitioner submits that since the Law of the Land has been declared by the Hon'ble Supreme Court holding that the rate of tax of Ujala Supreme and Ujala Stiff & Shine is 4% / 5% instead of 12.5% demanded by the assessing Authority, the assessing Authority is estopped from demanding the amount due as per Ext.P1 Assessment Order. The petitioner had already remitted admitted amount of 4% and the demand raised in Exts. P3 and P4 is only the amount over and above 4% tax, which the W.P.C.No. 35312 of 2017 6 petitioner is not legally liable to pay. The respondent has no authority of law to demand the amount which is not legally due. 9. The learned Government Pleader submits that as regards the petitioner, all statutory appeals filed were dismissed including the OT Revision filed before this Court and the petitioner did not pursue the matter further before the Hon'ble Supreme Court and thus, Ext.P1 order has become final. It was further submitted that it was subsequent to Exts. P3 and P4 notices that the judgment in _**MP Agencies case (supra)** was pronounced_ and hence the petitioner is liable to pay the amount demanded in the said notice. 10. I have considered the issue and the contentions raised. The Hon'ble Supreme Court in _**MP Agencie's case (supra)**_ held that the goods (Ujala Stiff and shine) remain in List A of Third Schedule which is taxable at 4%/5% and the inclusion of the goods in the residuary Entry 103 by the Revenue by no stretch of imagination can be made applicable. It was further held that if the assessee/appellant therein has paid the W.P.C.No. 35312 of 2017 7 amount of VAT in excess of 4%/5% to the State Government, they will not be entitled to get refund of the said amount. 11. Article 141 of the Constitution of India commands us to follow the decision of the Hon'ble Supreme Court, if there is a law declared by the Hon'ble Supreme Court which obviously would be binding on all courts in India and the parties thereto. In the light of Articles 141 and 142, it is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court has laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, but also mandate of the Constitution as provided under Article 141, that the law declared by Supreme Court shall be binding on all courts within the territory of India. In this context, it is also relevant to look into Article 142 of Constitution of India. The Hon'ble Apex Court in exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and any decree so passed or order so made shall be enforceable throughout the territory of W.P.C.No. 35312 of 2017 8 India. So on this count also, the plea of the petitioner that it is assessable at the rate of 4%/5% only, is sustainable. 12. The law regarding the rate of tax of Ujala stiff and shine has been declared by the Apex Court as 4% / 5% and that is the Law of the Land. The second respondent on the advice of the first respondent has issued Exts.P3 & P4 revenue recovery notices for recovery of an amount of Rs.6,43,079/-. There is no case for the respondents that the petitioner has not paid the admitted rate of tax of 4%. What is demanded by the respondents as per Exts.P3 and P4 notices are the amounts over and above of 4% / 5% tax with penal interest. The demand is per se illegal since they have no authority of law to demand any amount more than 4%/5% as declared by the Apex Court. 13. Admittedly, the petitioner has not challenged the judgment of this Court before the Apex Court but the respondents are not entitled to proceed with the recovery proceedings for recovery of the amount which is not authorised by law. When the Hon'ble Supreme Court has held that taxes paid by the assessee/appellant will not be refunded, it does not W.P.C.No. 35312 of 2017 9 allow the Department to collect the differential taxes in the case of assessees who have not met the demands already made. The recovery notices were not withdrawn by the respondents even after the declaration of the law by the Apex Court in **M.P.Agencies (Supra)** . 14. It is trite that even though all statutory remedies are exhausted and held against the petitioner, it is legal to invoke powers under Article 226 to challenge the same as it vitiates the old law. 15. On a consideration of the entire issue and facts of this case, I am of the opinion that Exts.P3 and P4 revenue recovery notices demanding an amount of Rs.6,43,079/- is illegal and unenforceable and has to be set aside. Hence the writ petition is allowed as follows; (i) Exts.P3 & P4 demand notices are hereby set aside, since those notices are being issued demanding tax in execess of 4% / 5%. The respondents are at liberty to raise fresh demand if it is found that the petitioner has not paid tax W.P.C.No. 35312 of 2017 10 for the relevant years at the rate of 4%/5% as the case may be. (ii) The petitioner shall produce the certified copy of the judgment along with copy of the writ petition before the respondents for compliance. **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** Dxy W.P.C.No. 35312 of 2017 11 ## **APPENDIX OF WP(C) 35312/2017** PETITIONER EXHIBITS EXHIBIT P1 COPY OF ASSESSMENT ORDER FOR 2011-12 DATED 31-05-2012 EXHIBIT P2 COPY OF ORDER IN OT REV. CASE NO. 241231/2014 DATED 09-01-2015 EXHIBITP3 RR REQUISISTION DATED 13-05-2014 EXHIBITP4 RR NOTICE FOR 2011-12 DATED 21-05-2014 EXHIBIT P5 JUDGMENT OF THE HON'BLE SUPREME COURT IN M. AGENCIES V.S STATE OF KERALA