Vinod Chandran, J.
1. The writ petition is placed before us, along with the appeals, since, when the appeals were pending, by a reference order in the writ petition, a learned Single Judge, found non-consideration of a few Division Bench decisions; in the judgment impugned in the appeals. We will first take up for consideration the appeals, since the learned Single Judge who passed the reference order more or less agreed with the impugned judgment in the appeals; but, however, felt the need for a re-consideration by a Division Bench, since three decisions of different Division Benches took a contrary view.
2. We will first refer to the facts in each of the appeals briefly. M/s.Hotel Breezeland Ltd. is the respondent in four appeals [W.A.Nos.121, 163, 220 & 229 of 2015] concerned with the assessment for the years 2006-07 to 2012-13. Admittedly, the assessee had applied for compounding under Section 7 of the Kerala General Sales Tax Act, 1963 [for brevity “KGST Act”], which permission was granted. After the close of the first year, within four years a notice was issued by the Assessing Officer [for brevity “AO”] under Section 7 of the KGST Act, modifying the computation of the tax payable under Section 7. This was on account of a variation of the tax assessed for the prior year, which was the reference point of determination of the compounded tax. The compounded tax payable in the subsequent years also were subject to modification, for reason of the change in the highest paid tax for the prior year, of the first year under consideration here. This had a cascading effect in all the subsequent years and the compounded tax payable for those subsequent years, were also modified by various orders. The modification in the first year was on account of the crime file in the just previous year, i.e., 2005-06, when additions were made in assessment, increasing the tax liability of the assessee for that prior year.
3. M/s.Sicillia Hotel (P) Ltd. is the assessee-respondent in W.A.No.413 of 2015. As in the other cases, the assessee-respondent applied for compounding for the years 2006-07 to 2008-09. After the close of the first year, within four years a notice was issued by the AO under Section 7 of the KGST Act. There the computation was modified by the AO on the ground that the opening stock was not added to the purchases made in the year for the purpose of computing the tax payable based on the purchase cost of liquor sold in the year.
4. The learned Senior Counsel Sri.Raju Joseph appearing for the assessee-respondents relied first on the decision of the Hon'ble Supreme Court in Bhima Jewellery v. Assistant Commissioner [(2014) 16 SCC 402]. It is his contention that on the composition of tax; by an option exercised by the assessee and permission granted by the Department, there is a bilateral agreement between the parties and there is no question of a re-opening or re-computation of the liability cast on the dealer by the compounding provision. If at all any computational exercise has to be carried out, it can only be under Section 43 of the KGST Act, invoking the power for rectification. The limitation for invoking Section 43 being three years, that too the provision having stipulated passing of an order within that period; the notice issued under Section 7 within a period of four years cannot at all be accepted, even as one under Section 43. Further, it is pointed out that even if the permission granted and the computation made at the beginning of the year is considered to be provisional, a difference as to the liability on computation, can only be in the context of the compounded tax under clause (a), on the purchase value of the liquor sold, being more than the highest tax conceded or paid by the assessee in the last three consecutive years.
5. It is also submitted that there is absolutely no provision for a regular assessment under Section 17 and the AO is not enabled to carry out such a proceeding in the case of a dealer who has opted to pay tax under the compounding provision. The attempt of the State to bring it under Section 19 also is resisted, pointing out that there is no assessment as such carried out under Section 17 and, hence, there can be no resort to Section 19 as has been held by a Full Bench of this Court in State of Kerala v. Shahid [2006 (2) KLT 484 [F.B.].
6. Sri.V.K.Shamsudheen, learned Senior Government Pleader appearing for the State, however, would seriously challenge the judgment of the learned Single Judge. It is argued with much emphasis that the finding of the learned Single Judge that there can be no regular assessment, under Section 17, in the case of a dealer who has opted for compounding under Section 7 is erroneous. Regular assessment is a term denoted to refer to the assessment carried out to determine the tax payable under Section 5 and there could be assessments carried out for a dealer opting for compounding. Section 17, only delineates the procedure for assessment; the exercise by which the tax payable is determined. To canvas the said proposition, the learned Senior Government Pleader relies on the decisions in Joy Alukkas Traders (I) Pvt. Ltd. (M/s.) v. State of Kerala [2010 (1) KHC 844], and unreported decisions in State of Kerala v. George Thomas S.T.Rev.No.92 of 2011 dated 15.11.2011 and State of Kerala v. M/s.Divya Gold Palace Jewellery (P) Ltd., O.T.Rev.No.139 of 2014 dated 08.12.2014. It is submitted that different Division Benches of this Court consistently held that Section 17 is applicable even in the case of a dealer opting for compounded payment of tax under Section 7 of the KGST Act.
7. Rules 18 and 21 of the KGST Rules, 1963 are specifically referred, to argue that every dealer, irrespective of the manner in which or the mode under which tax is paid, is obliged to file a return. Section 17 speaks of an assessment in the case of every dealer who has filed a return or even in the event of a failure to file such a return. Hence, Section 17 can be resorted to, according to Sri. Shamsudheen, for modifying the computation as arrived at in the commencement of the year. The provision is specifically read to advance the contention that the permission granted and the tax payable under the compounding provision for each month is provisional insofar as the final determination being made only after the close of the year. The final determination is possible only after the tax payable under clause (a) of Section 7 is known to the AO, which can only be at the close of the year. Further it is argued that the tax paid as seen from the provision would definitely include the assessed tax, the liability to which is on the assessee irrespective of the fact that it is not conceded in the returns or the books of accounts. Reliance is placed on yet another Division Bench decision of this Court in Kalika Hotel and Bar, Amballur (M/s.) v. State of Kerala [2012 (3) KHC 85].
8. The learned Single Judge, in the impugned judgment noticed that the payment of tax at the compounded rate is an alternative to the regular method of payment and when an option is exercised by the assessee and accepted by the Department, it is not open for the Department, at a later point, to re-open the same unless to rectify an apparent computational mistake. Reliance was placed on Bhima Jewellery to hold authoritatively on this position. The learned Single Judge found that; in enabling compounding the assessee on the one hand had to compute 140% of the purchase value of the liquor and on the other 115% of the highest turnover tax payable by it as conceded in the return or accounts, or the turnover tax paid for any of the previous consecutive three years. Whichever is higher was to be adopted for the purpose of paying tax under the compounded scheme. The learned Single Judge found that the words employed in clause (b) of Section 7 that turnover tax payable as conceded in the return or accounts or the turnover tax actually paid; did not include the assessed tax. The specific observation was that the legislature consciously omitted a reference to the assessed tax of the previous years in the formula prescribed for compounding. Reliance was also placed on a Division Bench decision of this Court in State of Kerala v. Malabar Ornaments [(2013) 57 VST 309].
9. The learned Single Judge, who later referred the matter for consideration to a Division Bench, has more or less agreed with the propositions in the judgment impugned in the appeals. However, it was noticed that George Thomas, Joy Alukkas Traders and M/s.Divya Gold Palace Jewellery (P) Ltd. took a contrary view. We are essentially called upon to examine the said decisions of the Division Bench and decide as to whether the same can be accepted. In the event of our finding difficulty in accepting the propositions of the said decisions, definitely a reference has to be made to a Larger Bench.
10. Joy Alukkas Traders was a single registered dealer with a Head Office and three branches who, under Section 7 compounded only for two of the branches. The Head Office and a branch continued under the regular scheme of Section 5. Pausing here, we have to record acceptance of the argument of Sri. Shamsudeen that a regular assessment is one in which the tax is assessed under Section 5 following the procedure under Section 17. An assessment was made in the case of the Head Office and one branch under Section 5 and in the two branches, which opted for compounding, under Section 7. The Deputy Commissioner invoked Section 35 to revise the assessment, holding that there can be no piece-meal compounding of an assessee's turnover and directed the entire business to be assessed under Section 7. The, contention raised of no interference to the compounding granted, especially for reason of there being a bilateral contract, from which the State cannot resile unilaterally was negatived on the facts.
11. The Division Bench held so in paragraph 7 of the decision thus:
“7. ... It is clear from Form No.21A and Form No.22 issued under Rule 30 that the payment of tax based on the approval and the demand notice are only provisional and the same has to find acceptance in a regular assessment. In other words, even if there is a mistake or omission in the approval granted by the assessing officer, it is within his powers to modify such order and demand the tax escaped under the compounding scheme in regular assessment or later by revising assessment under Section 19(1).
xxx ... When a regular assessment is completed by the assessing officer, his earlier orders issued in Form No.21A and Form No.22 for payment of tax under compounding scheme do not survive any longer because the final assessment supersedes all those proceedings. No purpose will be served by modifying those orders which have lost significance once assessments are made.”
12. Sri Raju Joseph, would then point out that Rule 30, based on which the Division Bench spoke, stood amended in the year 2005. Sub-rule (5) of that Rule, earlier specifically mandated the filing of a return even by the dealers opting compounding. The decision hence has no application to the subject year, is the argument. Here we have to notice Rules 18 & 21, which also prescribe the filing of a return, by every dealer, which acquires the effect of an obligation cast on the dealer. Further Sri. Shamsudeen would refer to the amended Rule to again assert that the mandate to file a return is available there too.
13. The amended Rule, to the extent it is relevant, is as below:
“30.Payment of tax at compounded rates:-(1) Every dealer eligible to pay turnover tax at compounded rate under section 7, who desires to exercise the option provided for under the said section may apply to the assessing authority concerned for permission to pay turnover tax at the rates specified therein in Form No.21 on or before the 30th day of April of the year to which the option relates or along with the application for registration under the Act, whichever is later.
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(iii) The dealer to whom permission is granted under sub-rule (2) shall submit along with the monthly return in Form No.9 a statement of purchases of liquor made during the month, showing invoice number and date, particulars of goods, quantity and value, along with photocopies of the purchase bill/invoices.”
[underlining by us for emphasis]
We perfectly agree with the learned Senior Government Pleader. We find that the amended rule also mandates filing of returns and the precedential force of Joy Alukkas Traders continues after the amendment.
14. In Georg e Thomas the Tribunal set aside an assessment under Section 19(1) of the KGST Act for reason of the original assessment being based on compounding. M/s .Joy Alukkas Traders was followed to reverse the findings of the Tribunal and to uphold the re-assessment carried out under Section 19; again reaffirming that assessment and re-assessment to determine the compounded tax payable, are permissible.
15. M/s.Divya Gold Palace Jewellery was under the Kerala Value Added Tax Act, 2005 ('KVAT Act' for short), wherein similar provisions of compounding came up for consideration. Therein also, the respondent-assessee, a dealer in Gold, applied under the compounding provision and tax paid for five years, on the basis of the highest turnover conceded in the prior years. Subsequently, the AO found the highest turnover conceded to be of a different year from that adopted for granting permission for compounding.This led to a proceeding under Section 25(1) of the KVAT Act for assessment of escaped turnover, which was challenged before the Tribunal. The Tribunal allowed the same following a judgment of this Court in (2011) 3 KHC 334 (DB) [Zodiac Regency (M/s.) v. Commissioner of Commercial Taxes, Tvm.]. Zodiac Regency (M/s.) was distinguished and M/s .Joy Alukkas Traders and Georg e Thomas relied on to find the re-assessment under Section 25 to be imminent and possible, going by the provisions under Section 8 of the KVAT Act, which is in pari materia with Section 7 of the KGST Act.
16. We also have to notice Zodiac Regency Vs. CCT [2011(3) KHC 334(DB), which was relied on by the assessee in Divya Gold Palace. There the assessee applied for compounding, under the identical provision. The application made was on the first year of business. Later based on a circular, enabling an application under Section 7 only for dealers having at least three years of continuous business;the dealer sought assessment under Section 5. Despite the fact of the compounding applied in the first year of business, it could be made effective under clause (a) of Section 7. The assessee applied with open eyes, fully aware of the fact that there could be no choice made between clauses (a) & (b) of Section 7. The Division Bench refused to permit the cancellation of compounding already opted and accepted, which facts have no significance here.
17. Before proceeding further, we have to extract Section 7(a) and (b) of the KGST Act as available in the relevant assessment years.
“7. Payment of tax at compounded rates:-
Notwithstanding anything contained in subsection (2) of section 5, any bar attached hotel, not being a star hotel of and above three star hotel, heritage hotel or club, may, at its option, instead of paying turnover tax on foreign liquor in accordance with the provisions of the said sub-section pay turnover tax on the turnover of foreign liquor calculated,-
(a) at one hundred and forty per cent of the purchase value of such liquor, in the case of those situated within the area of a municipal corporation or a municipal council or a cantonment, and at one hundred and thirty five per cent of the purchase value of such liquor, in the case of those situated in any other place; or
(b) at one hundred and fifteen per cent of the highest turnover tax payable by it as conceded in the return or accounts or the turn over tax paid or any of the previous consecutive three years, whichever is higher.”
18. We agree with the learned Single Judge insofar as the computation being on the one hand under clause (a) and the other under clause (b), and the liability of the dealer being to pay the tax computed under either of these heads, whichever is higher. The contention raised by the assessee is on the re-opening not being permissible, after the permission has been granted in the commencement of the year and the assessed tax not being contemplated as coming within the provisions of Section 7. As was pointed out by Sri. Shamsudheen, the Division Bench decisions above referred specifically held that even in a case in which the dealer opts for payment of tax under the compounding provision, there is an assessment contemplated by the statute and there could also be modifications made on the computation.
19. We have to express our respectful agreement with the Division Bench decisions above referred based on which the reference order has also been made. We notice that Section 7 is in lieu of the tax payable under Section 5. A dealer desirable of exercising an option under Section 7 has to make an application at the commencement of the year. The application has to be considered and payment of compounded tax permitted by the Department. On such permission being granted, as held by the Honourable Supreme Court in Bhima Jewellery, there is a bilateral agreement between the parties from which neither can resile from. The assessee cannot claim to be assessed under Section 17, determining tax under Section 5. Nor can the Department resort to such an assessment, based on the turnover of that particular year.
20. However, it cannot at all be said that there is no assessment contemplated insofar as a dealer opting for the compounding provision. As pointed out by Sri. Shamsudheen, Rule 18 of the KGST Rules, speaks of an annual return and Rule 21 of a monthly return, which has to be necessarily filed by every dealer registered under the KGST Act. Section 17 is the procedure to be followed by the assessing authority in the case of every registered dealer and every dealer liable to take out registration under the KGST Act, who is obliged to submit such return or returns relating to his turnover in such manner and within such period as may be prescribed. The prescription we already noticed as available in the Rules, would necessarily oblige a dealer who applied under the compounding provision also to file a return. Section 7 speaks of the manner in which the compounded tax has to be computed and merely because an option is exercised under Section 7, it would not absolve the dealer from filing a return; both monthly and annually.
21. We, then, come to sub-Section (3) of Section 17 which enables the assessing authority to assess the dealer to the best of judgment, if the returns are incorrect or incomplete. True, additions for probable omissions and suppressions would only apply in the case of an assessment on the basis of the turnover of the subject year ie: under Section 5. Bhima Jewellery is an authority for the proposition that once the application for compounding has been accepted, there is a bilateral agreement entered into by the assessee and the Department, which absolves the assessee from the rigour of an assessment based on the turnover of the subject year under Section 5. A regular assessment is one, based on the turnover of that particular year, with the levy of tax under section 5; which a dealer opting the compounding provision would not be obliged to satisfy. The tax payable on the option exercised for compounding has to be computed under the compounding provision which in the case of the present assessee would depend upon either the purchase value of the liquor sold in that particular year or the highest tax conceded in the returns or accounts or tax paid in the three consecutive years.
22. The modifications to the provisional compounded tax proposed, is only insofar as a revised computation being necessitated by any reason. The grounds include the tax payable on the basis of clause (a) being found higher than that under clause (b), based on the purchase value of liquor of the subject assessment year. It could also be due to revision of tax paid in any of the prior years, which becomes the highest in the three years referred under Clause (b). This results in enhancement of the compounded tax permitted to be paid; under an assessment under Section 17 which has been upheld by the decisions afore cited. The restriction in withdrawing from the bilateral agreement, is only in the Department or the assessee claiming levy under any other mode other than compounding.
23. An assessment under Section 17, which does not levy tax under Section 5, all the same is a valid procedure, even when it correctly computes the tax payable under Section 7. This could be based on the returns filed in the subject year resulting in re-determination of purchase value under clause (a) or an enhancement of the tax paid in the prior years, under reference in clause (b). Though herein the notice is one issued under Section 7, that provision does not contemplate such a procedure. The notice could only be under Section 17 and the mere wrong quoting of a provision would not vitiate the proceeding. It merits mention; limitation for completion of assessment under Section 17 is four years. Clause (b) of Section 7 speaks of the tax paid in the immediately prior, three consecutive years. The proceedings in the prior year and in the subject years, were initiated within the limitation period.
24. We then notice the contention of the learned Senior Counsel that Section 43 is the only enabling provision by which the AO could rectify the mistakes. Section 43 specifically speaks of an error apparent on the face of the record, which we are afraid is not a ground, to interfere with the computation arrived at in the commencement of an year, based on a compounding provision. Especially when the revision of provisional computation arises, on a subsequent assessment made, for a previous year, which enhances the tax liability of the assessee in any of the three prior years. Even under clause (a) of Section 7, the closing stock has to be verified, which is available only at the close of the year. The learned Senior Counsel would insist that, if at all, a re-opening can be permitted, it can only be permitted in the context of the tax payable under clause (a) being in excess of that payable under clause (b). We cannot accept such a contention, since the tax paid under an assessment for a previous year, which forms the basis of the computation under clause (b) could be ascertained only when the assessment under Section 17 is completed for that previous year, determining the taxable turnover and the liability under Section 5 of the Act.
25. We cannot but observe that if a contrary interpretation is given, it would only advance the cause of a dishonest dealer, who does not maintain proper books of accounts or file returns in accordance with the statute. The regular assessment and re-opening of assessment for bringing in escaped turnover are all provisions to ensure that the tax due from a dealer is correctly levied and collected by the State. There is also a provision for imposing penalty under Section 45A of the KGST Act on detection of any offence of suppression or omission. The crime files so initiated can also lead to additions for probable omissions and suppression, in an assessment on best judgment of the AO. The dealer who opts for payment of tax under Section 7 cannot be said to have been absolved of the liability for all the consequences arising from such an assessment made for the previous three years which is the reference point for determining the tax payable in the relevant year under clause (b) of Section 7.
26. Now we come to the issue of what is the “tax paid' as discernible from clause (b) of Section 7. Earlier, we noticed that the learned Single Judge relied on Malabar Ornaments to find that tax assessed is not included in the formula prescribed under clause (b) which is confined to the highest tax conceded in the return or accounts or the tax paid in the three consecutive years. The judgment in Malabar Ornaments was distinguished in Kalika Hotel and Bar, Amballur (M/s.). The provisions interpreted in Malabar Ornaments, specifically Section 8(f)(i) of the KVAT Act, used the words “highest tax payable by him as conceded in the return or accounts”. Section 7 relevant to the subject years, as found from the KGST Act, has in addition, the words “or the turnover tax paid”. The Division Bench after noticing this, held so in para 7 in Kalika Hotel and Bar, Amballur (M/s.) thus:
“7. ... The legislature could not have assumed that the assessment of the previous years would not be completed before grant of the facility in the subsequent year; to pay tax at compounded rates. This would definitely take in the assessed tax also.
XXX … The assessments are to be completed on the close of an assessment year and any assessment concluded subsequently and modification or enhancement made would relate back to the date stipulated for payment of tax and filing of annual returns. Whenever such payment is made it would definitely be tax paid by the assessee for the particular assessment year. The decision of the Division Bench in Malabar Ornaments Case(Supra) cannot be applied to the provision that has come up for consideration in the above revision. Both the facts and the law could be clearly distinguished.”
27. Malabar Ornaments, hence, is not applicable insofar as the relevant provision under Section 7(a) and (b); applicable for the subject years, which also takes in the tax paid by the assessee. If the reference is only to what is available in the returns or the books of accounts, then there was absolutely no point in adding the additional words. These words would be rendered otiose, if the interpretation is that the revision of tax payable as carried out in an assessment or a re-assessment cannot be made reference of, for the purpose of computing the tax payable under Section 7 of the KGST Act. We, hence, find the proceedings initiated by the AO for the subject years, making computation of the actual tax payable based on the final assessment of the prior year referred under clause (b) of Section 7, worthy of being upheld.
28. We also have to deal with the contention of the learned Senior Counsel that such computation if at all has to be carried out immediately on the close of the year. If such an interpretation is given, then necessarily, there could be no revision made on the basis of an assessment or re-assessment carried out relevant to the previous year which again would result in the assessed tax being not taken into account for the purpose of determining the compounded tax payable. That is never the intention of the legislature which provided the compounding provision with reference to the tax paid in the prior three consecutive years; when the period for completion of assessment of those prior years extended to five years. However, we notice that such computation has to be done within the period of limitation.
29. For arguments sake, even if assessment as contemplated under Section 17 is found to have been not made in the present cases, there is a computation made determining actual tax payable under Section 7 based on the assessment of the previous year which enhanced the tax payable by the assessee. Proceedings have been initiated within the four year period. The reasonable period of limitation when there is no specific period provided under the statute, as has been held by the Honourable Supreme Court in (2007) 11 SCC 363 [State of Punjab and Others v. Bhatinda District Cooperative Milk Producers Union Ltd.], has to be found out from the general scheme of the Act and the limitation provided for various proceedings as
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available under the Act itself. Under the KGST Act, limitation for assessment is within four years of the close of the assessment year. There is a computation made determining actual tax payable under Section 7, within that period, based on the assessment of the previous year which enhanced the tax payable by the assessee. Proceedings having been initiated within the five year period, we are of the opinion that the same cannot be set aside for reason only of a delay having occurred, from the close of the year, which we do not consider to be unreasonable in the general scheme of the enactment. 30. In the case of the assessee- M/s.Sicillia Hotel (P) Ltd., the contention was that the opening stock of the relevant year was not taken into account. We find that the AO had added the opening stock to the purchases made, but not deducted the closing stock of the said year. We specifically notice that Section 7 speaks of payment of tax at a percentage of purchase value of such liquor, which has to be understood as the purchase value of the turnover of foreign liquor as found in the main body of Section 7. Hence, what is to be determined is the percentage of the purchase value of the liquor sold in that particular relevant year. This has to be computed by adding the opening stock with the purchases of the relevant year and then deducting the closing stock. The AO shall carry out such exercise and now determine the tax payable. 31. It is also pointed out by the learned Senior Counsel that in the case of M/s Hotel Breezeland Ltd., a penalty proceeding was initiated based on which certain additions were made in the assessment of the year 2005-06. This was taken into account to determine the tax payable for the relevant year under Section 7; which resulted in the modifications impugned herein. The learned Senior Counsel points out that the penalty proceedings itself were set aside by this Court, with minor penalty, left to be levied. The additions made for the year based on the penalty proceedings were also substantially interfered with by this Court by Ext.P8 judgment in S.T.Rev.No.95/2010 dated 24.05.2010 produced in WP(C) No.1514/2011 from which WA No.229/2015 arises. This reduced the tax payable to a large extent. This also has to be taken into account while determining tax paid under clause (b) of Section 7. 32. The assessees would appear before the AO and necessarily adjustments would be made insofar as the compounding tax computed for the subject assessment years. With respect to the referred matter; we, having followed the Division Bench decisions which were doubted by the learned Single Judge, we are of the opinion that the matter be remitted back to the learned Single Judge having roster, for consideration on the facts and the law as declared in the afore cited Division Bench decisions followed by us. In the result, we uphold the proceedings initiated by the AO and the Writ Appeals are allowed setting aside the judgment of the learned Single Judge. WP(C) No.34002/2016 is sent back to the Single Bench for consideration. No order as to costs.