Dismissed

State of Kerala v. M/S. Southern Ispat Limited

Kerala HC1 Mar 2013RP/1165/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a review petition challenging an order under the KGST Act. The Court held that the review was not maintainable as the factual grounds regarding prior crime files were not new facts and were available to the Tribunal at the time of the original order, reflecting a lack of due diligence by the Department.

What did the court decide?

Review petition dismissed as the facts were not new and there was no lack of due diligence in failing to produce them earlier.

State of Kerala Vs M/S. Southern Ispat Limited — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:-

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN &

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934

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R.P.No.1165 of 2012

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AGAINST THE ORDER IN S.T.Rev.No.42/2012 OF HIGH COURT OF KERALA, DATED 15.06.2012.

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REVIEW PETITIONER/ REVISION PETITIONER:-

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THE STATE OF KERALA, REP. BY DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM.

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BY SENIOR GOVERNMENT PLEADER SRI.S.SUDHEESH KUMAR.

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RESPONDENT/ RESPONDENT:-

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M/S. SOUTHERN ISPAT LIMITED, 19/629(1) SREYAS, NEAR YAKKARA SCHOOL BUS STOP, WEST YAKKARA, PALAKKAD - 678 001.

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 22-02-2013, THE COURT ON 01-03-2013 PASSED THE FOLLOWING:-

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Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ.

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R.P.No.1165 of 2012 in S.T.Rev.No.42 of 2012

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Dated this, the 1^st day of March, 2013

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ORDER

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K.Vinod Chandran,J:

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The State has filed the above review, raising the ground that the question of exemption as per SRO Nos.1729/93 and 295/98

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has not been considered by this Court in the order dated 15.06.2012.

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The questions raised in the revision filed by the State against the order of the Tribunal was with respect to estimation made by the Assessing Officer and modified by the Tribunal as also sales tax exemption. The exemption was granted by the Tribunal on the basis of a certificate of the Joint Commissioner (General), Commercial Taxes, Thiruvananthapuram, granting additional exemption to the tune of Rs.86,42,922/- for the period 27.02.1999 to 26.02.2006. The assessment year was 2004-05. The review has

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RP.1165/2012 in ST Rev.42/2012. - 2 -

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been filed pointing out that there were two cases, Crime file dated 30.08.2006 and O.R. dated 24.05.2010. It is stated that in the O.R., no compounding fee and double the tax due on the turnover suppression has been paid and, hence, the assessee is disentitled from claiming exemption. We notice that as per the Tribunal order, since the exemption certificate issued by the Joint Commissioner (General) was produced, the Tribunal, considering the fact that exemption order was issued after prolonged legal proceedings found that the same has to be considered in the assessment. It was in this circumstance that we refused to interfere with the order of the Tribunal.

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We fail to understand how a review is maintainable on the basis of the facts now submitted before us. Going by the dates of the Crime File and the O.R., both were available even at the time when the order was passed by the Sales Tax Appellate Tribunal. It is also not clear as to the period to which the crime file and O.R. is related to, since that would be relevant in the context of the exemption being valid only upto 26.02.2006.

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RP.1165/2012 in ST Rev.42/2012. - 3 -

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Though the above application has been filed under Section 63(8) of the Kerala value added Tax Act, 2003 (for short “KVAT Act”), we notice that the assessment was made under the Kerala General Sales Tax Act, 1963 (“KGST Act” for short), being of the year 2004-05. Even in the original order we had directed a copy of the order to be communicated to the Commissioner, Commercial Taxes for issuing necessary directions on what we have stated about the fact finding authorities having not dealt with the issues in a comprehensive and intelligible manner, thus making the basis on which the best judgment assessment and estimations were made; vague. Now the above review filed by the Deputy Commissioner (Law), Commercial Taxes under the KVAT Act is against an order issued under the KGST Act.

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Even going by Section 41(7) of the KGST Act, review is possible only on the basis of discovery of new and important facts, which after the exercise of due diligence were not within the knowledge of the applicant or could not be produced when the order was made. There is absolutely no averment regarding the

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RP.1165/2012 in ST Rev.42/2012. - 4 -

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same and as we have noticed earlier, both the crime files were available even when the matter was heard by the Tribunal and orders passed. There is no question of the same being not within the knowledge of the Department despite exercise of due diligence. Review cannot be invoked to set right absence of due diligence. In the above circumstances, we dismiss the review

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petition.

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Vku/-

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Sd/Thottathil B.Radhakrishnan Judge Sd/K.Vinod Chandran Judge. - true copy -

State of Kerala v. M/S. Southern Ispat Limited

Case brief

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State of Kerala v. M/S. Southern Ispat Limited

Case brief

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