Chitra P. Prabhan Vs. State of Kerala - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. - 4. in support of the applications, learned counsel for the assessee submitted that reassessment on the footing that there was escaped assessment is clearly unsustainable.arijit pasayat, c.j.1. these three applications under section 41 of the kerala general sales tax act, 1963 (in short, 'the act') have been filed by the assessee questioning correctness of the view expressed by the assessing officer, first appellate authority and kerala sales tax appellate tribunal, cochin bench (in short, 'the tribunal') that 'soda maker' is not a plastic product and there being no specific entry in the act, it is to be taxed as an unclassified item at the rate of 5 per cent.2. assessment years involved are 1985-86, 1986-87 and 1988-89. while impugned assessments under the first two assessment years were completed under section 19 of the act, for the assessment year 1988-89, it was completed under section 17 of the act.3. factual position, as highlighted by the parties, is as follows : assessee is the second seller of soda makers. for the first two assessment years, original assessment was completed on october 20, 1986 and july 21, 1988 respectively, treating soda maker as an article falling under item 156 of the first schedule to the act. subsequently, assessments were reopened under section 19 of the act. it was held by the assessing officer for all the three years that soda maker is an unclassified item and liable to be taxed at the rate of 5 per cent and consequently, assessee was to pay tax at 5 per cent. this was affirmed by the additional appellate assistant commissioner, ernakulam (hereinafter referred to as 'first appellate authority'). tribunal also affirmed the view.4. in support of the applications, learned counsel for the assessee submitted that reassessment on the footing that there was escaped assessment is clearly unsustainable. basis for reopening was a clarification issued by the state government in purported exercise of power under section 59a of the act. the said government order was issued on april 16, 1988 and thereafter, reassessment notices were issued under section 19. scope and ambit of section 59a was examined by this court in travancore chemical & . v. state of kerala [1991] 81 stc 313 ; (1991) 1 klt 196. said provision was held to be unconstitutional and violative of article 14 of the constitution. the said view was affirmed by the apex court in state of kerala v. travancore chemicals and manufacturing co. [1999] 112 stc 191. therefore, any action taken pursuant to order of the government, purportedly issued under section 59a of the act, is unsustainable.5. in reply, learned counsel for the revenue submitted that no action was taken to reopen the assessment or complete the original assessment on the basis of the order issued by the government. in the notice issued to the assessee and also in the records, there is nothing to show that government order dated april 16, 1988 was the basis for initiation of the proceedings. in any event, for the assessment year 1988-89, original assessment has been done. merely because the first appellate authority has referred to the government order as an additional to justify his conclusion, that is not sufficient to hold that the basis for reopening was the government order dated april 16, 1988.6. there is no dispute to the position that section 59a of the act has been held to be unconstitutional and violative of article 14 of the constitution. therefore, the taxing authorities were not bound by the said order. clarifications/circulars issued by the central government and/or the state government represent merely their understanding of the statutory provisions. they are not binding upon the courts. it is true that those clarifications and circulars were communicated to the concerned dealers but even so, nothing prevents the state from recovering the tax, if in truth such tax was leviable according to law. there can be no estoppel against the statute. the understanding of the government, whether in favour or against the assessee, is nothing more than its understanding and opinion. it is doubtful whether such clarifications and circulars bind the quasi-judicial functioning of the authorities under the act. while acting in a quasi-judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars. law is what is declared by the supreme court and the high court, to wit, it is for the supreme court and the high court to declare what a particular provision of the statute says, and not for the executive. the above position was illuminatingly stated by the apex court in bengal iron corporation v. commercial tax officer [1993] 90 stc 47. the revenue authorities, therefore, could act de hors the government order dated april 16, 1988. it is to be seen, whether in actuality they did so.7. original records were produced before us. on examination thereof, it is clear that the government order dated april 16, 1988 was not foundation for initiation of action by the revenue authorities and for levying tax. in the notices issued for reopening, it is stated in clear terms that on further scrutiny, the mistake committed in granting exemption was noticed and, therefore, action was taken. in the orders of assessment also, there is no reference to government order dated april 16, 1988. the first appellate authority, while referring to the same, has not indicated that same was the foundation for action under section 19 of the act. that plea of the assessee has no substance.8. factually, tribunal held that soda maker is not an article made of plastic to be covered by item 156 of the first schedule. it has been indicated that there is metallic gas cylinder in it and it can never be termed as plastic product as only the outer cover is made of plastic. we concur with the conclusion.revision applications are without any merit and are dismissed.