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Judgment
The order sought to be reviewed by the petitioner was delivered
by this court on 28.10.2016 in O.T.R.No.174 of 2016, noticing the
specific assertions of the parties and on an assessment and evaluation
of all the factors and pleadings on record. This Court had noticed
specifically that the dealer had concededly sold the goods at a lower
price than at which it was purchased by them and that the business
was at a loss which would warrant, therefore, a question only as to
whether the Tribunal had considered and applied the mandate in
Explanation VII to Section 2(li) of the Kerala Value Added Tax Act.
This evaluation was done in the background of the dealer''s
assertion that he had received amounts from the suppliers subsequent
to the purchase. The petitioner had urged that the amounts that he
had received as ''discount'' are incentive of the quantum of goods sold.
This court had concluded, after a thorough evaluation of the materials
on record, that the findings entered into by the first appellate authority
was without any evidence and without consideration of the materials
on record in support of such claim. This court, therefore, found that the Tribunal had correctly assessed the situation and had declined the
claim of the petitioner.
The petitioner has preferred this review petition singularly on
the ground that this court had not noticed the ratio of another Bench
decision of this court in Priya Agencies v. Commercial Tax Officer
{(2008) 14 VST 293}. We do not understand on what basis this
assertion has been made by the petitioner. We say this because this
court has specifically adverted to the position that was declared by the
Bench in the judgment referred to above and this court had found
specifically that even though the petitioner had attempted to obtain
the benefit of the proviso to section 11(3) of the Act, on the ground
that he had received the amounts as reimbursement of the expenses
incurred by him, based on the pleadings and the submissions on
record, such contention would have to be supported by clear and
cogent evidence and materials that the dealer had suffered the
expenses which alone were being reimbursed.
In the case at hand, since there was nothing on record to
show this and since there was concededly nothing to show that the
petitioner had suffered any expenses or that the amounts paid by the
supplier were towards reimbursement of expenses, this court had
declined relief to the petitioner.
On a conspectus of what we have recorded above and taking
into account of the assertions and materials on record, we are of the
specific and definite view that there is no cause shown for review of
the judgment impugned in this review petition. The review petition is
therefore dismissed.