Abdul Nazar vs Sales Tax Officer-II and Others

K.S. Paripoornan, J.—The petitioner in O.P. No. 6734 of 1991 is the appellant in this writ appeal. The Revenue is the respondent. The petitioner is a hotelier. We are concerned with the assessment for the year 1987-88. It was made on best judgment basis. The controversy is regarding the turnover brought to tax u/s 5A of the Kerala General Sales Tax Act, 1963 (in short, "the Act"). The assessing authority passed exhibit P1 order of assessment, fixing the taxable turnover at Rs. 16,63,940. Of the above, a turnover of Rs. 13,53,531 was fixed as turnover taxable u/s 5A of the Act, and the tax thereon came to Rs. 90,642. Exhibit P1 was challenged as illegal and ultra vires the Constitution of India. The learned single Judge, on the basis of the decision of the Supreme Court in State of Tamil Nadu v. Kandaswami [1975] 36 STC 191 ker and the Bench decision of this Court in Hill Produce Corporation v. State of Kerala (1991) 1 KLT 50, Case No. 70 upheld the validity of Section 5A of the Act. The only other plea raised before the learned single Judge and before us is that Section 5A of the Act is not workable in the absence of the rules framed for the said purpose. Reliance was placed on Section 16(1) of the Act to contend that in the absence of rules the turnover u/s 5A of the Act cannot be assessed to tax. The learned single Judge negatived this plea as well. The petitioner in the original petition has thereafter come up in writ appeal against the judgment of the learned single Judge dated August 8, 1991.

We heard counsel for the appellant Mr. Jose Joseph. In the light, of the decision of the Supreme Court in The State of Tamil Nadu Vs. M.K. Kandaswami and Others, it is too late in the day to contend that Section 5A of the Act is illegal and ultra vires the Constitution. The matter was considered again in detail by a Bench of this Court in Hill Produce Corporation v. State of Kerala (1991) 1 KLT 50, Case No. 70 judgment dated November 19, 1990. The Bench upheld the decision of a learned single Judge reported in Hill Produce Corporation v. State of Kerala [1991] 80 STC 444 (Ker) : (1990) 2 KLT 436. In the light of the above decisions the plea that Section 5A of the Act is illegal and ultra vires, fails. We hold so. The only other plea is that Section 5A of the Act is not workable in the absence of rule framed for the purpose. Section 16(1) of the Act was pressed into service in that connection. The learned single Judge considered the matter in detail and held that the taxable turnover u/s 5A is to be taxed at the rates mentioned in Section 5 of the Act and there is no separate procedure prescribed for assessing a dealer u/s 5A of the Act. The same procedure and method of assessment adopted u/s 5 of the Act is to be resorted to in cases where Section 5A of the Act is also attracted. We are in agreement with the view so expressed by the learned single Judge. The plea, that the turnover falling u/s 5A of the Act cannot be brought to tax in the absence of rules, also fails.

No other point was raised in the writ appeal.

The writ appeal fails and it is dismissed.