Review petitions challenging the Kerala Value Added Tax Appellate Tribunal's order dismissing an appeal against imposition of tax were dismissed. The High Court held that the Tribunal's factual findings regarding unreliable evidence sufficed to deny interference.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939
OT.Rev.No. 66 of 2017 ()
------------------------AGAINST THE COMMON ORDER IN TA(VAT) 54/2016 & CONNECTED CASES of THE KERALA VALUE ADDED TAX/AGRL.INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE DATED 27-10-2016
REVISION PETITIONER(S)/APPELLANT/APPELLANT/ASSESSEE :-
M/S.DINESH TEXTILES CHAITHANYA, KAMAL PEEDIKA, P.O., EACHUR, KANNUR - 670 001, REPRESENTED BY ITS MANAGING PARTNER, SRI.C.RAMESAN.
BY ADV. SRI.DALE P.KURIEN
RESPONDENT(S)/RESPONDENT/RESPONDENT/REVENUE :-
STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, STATUE JUNCTION, THIRUVANANTHAPURAM - 695 001.
BY SR.GOVERNMENT PLEADER SRI.MUHAMED RAFIQ
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 05-07-2017, ALONG WITH OTRV. 74/2017 & CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
jvt
O.T.Rev. No.66/2017
APPENDIX
REVISION PETITIONER'S EXHIBITS :-
ANNEXURE A :- TRUE COPY OF THE CERTIFICATE No.B2/8160/86 DATED 7-2-1987 FROM DIC. KANNUR.
ANNEXURE B :- TRUE COPY OF THE RENEWAL CERTIFICATE DATED 30-052007 FROM DIC VIDE CERTIFICATE BEARING REGISTRATION No.32002 12 00363.
ANNEXURE C :- TRUE COPY OF THE NOTIFICATION DATED 3-09-2008.
ANNEXURE D :- TRUE COPIES OF THE RELEVANT PAGES OF THE PASSBOOK BEARING MEMBERSHIP No.E-11/269.
ANNEXURE E :- TRUE COPY OF THE CERTIFICATE DATED 20-07-2016 ISSUED BY M/S AMBADI ENTERPRISES NOTING THE TOTAL PURCHASES EFFECTED BY THEM IN THE COURSE OF EXPORT ALONG WITH STATEMENT OF ACCOUNTS, FOR THE YEAR 2013-14, FROM THE PETITIONER.
ANNEXURE E1 :- TRUE COPIES OF THE THREE CERTIFICATES, ALL DATED 23-07-2016, ISSUED BY M/S SREEKANDHA WEAVING WORKS, KANNUR, REGARDING LOCAL PURCHASE FROM THE PETITIONER FOR THE YEAR 2013-14, IN THE COURSE OF EXPORT TO U.S.A.
ANNEXURE F :- TRUE COPY OF THE ASSESSMENT ORDER DATED 29-112014.
ANNEXURE G :- TRUE COPY OF THE NOTICE OF DEMAND DATED 29-112014.
ANNEXURE H :- TRUE COPY OF THE FIRST APPELLATE ORDER DATED 172-2016.
ANNEXURE I :- TRUE COPY OF THE TRIBUNAL APPEAL MEMORANDUM DATED 25-04-2016.
ANNEXURE J :- TRUE COPY OF THE TRIBUNAL ORDER DATED 27-102016.
ANNEXURE K :- TRUE COPY OF THE ARGUMENT NOTES.
ANNEXURE L :- TRUE COPY OF THE ANNUAL VAT RETURN FOR THE ASSESSMENT YEAR 2013-14 DATED 31-05-2014.
ANNEXURE M :- TRUE COPIES OF THE SET OF SALE INVOICES ISSUED TO 1)M/S AMBADI ENTERPRISES LTD, KANNUR 2) M/S SREEKANDHA WEAVING WORKS KANNUR 3) ZANAV HOME COLLECTIONS, BANGALORE 4) TRACON EXPORT SERVICES (P) LTD, KANNUR 5) VERVE FABRICS, BANGALORE ISSUED BY THE PETITIONER FOR THE YEARS 2013-14 & 2014-15.
O.T.Rev. No.66/2017
ANNEXURE N :- TRUE COPY OF THE AUDIT REPORT IN FORM 3CD UNDER SEC, 44AD OF THE INCOME TAX ACT OF THE PETITIONER, FOR THE YEAR ENDED 31-3-2014.
ANNEXURE N1 :- TRUE COPY OF THE P & L ACCOUNT WITH ATTACHED SCHEDULES FOR THE YEAR ENDED 31-3-2014.
ANNEXURE N2 :- TRUE COPY OF THE BALANCE SHEET WITH ATTACHED SCHEDULES FOR THE YEAR ENDED 31-3-2014.
ANNEXURE O :- TRUE COPIES OF THE PURCHASE ORDER RELATING TO 2013-14 AND 2014-15 FROM M/S ZANAV HOME COLLECTIONS, M/S SREEKANDHA WEAVING WORKS, M/S VERVE FABRICS, M/S V.V.DECOR, M/S HOME FABRICS AND M/S TRACON EPL.
ANNEXURE P :- TRUE COPY OF THE CHEQUE No.0845436.
ANNEXURE Q :- TRUE COPY OF THE COVERING LETTER ISSUED TO THE RECOVERY OFFICER VIZ. INSPECTING ASSISTANT COMMISSIONER, KANNUR DATED 09-08-2016, SHOWING DETAILS OF COMPLIANCE OF STAY ORDER.
ANNEXURE R :- TRUE COPY OF THE CHEQUE No.085437 DATED 09-082016 DRAWN ON CANARA BANK, KANNUR MAIN BRANCH, IN FAVOUR OF THE ASSESSING OFFICER.
RESPONDENT'S EXHIBITS :- NIL
//TRUE COPY//
P.A. TO JUDGE
ANTONY DOMINIC, J. &
DAMA SESHADRI NAIDU, J.
O.T.Rev.Nos.66, 74, 79, 81, 85, 88, 103, 104, 105, 108, 109 and 119 of 2017
--------------------------------------------Dated this the 5th day of July 2017
O R D E R
Antony Dominic, J.
In all these cases, the petitioner claims that it is a Partnership Firm engaged in the business of handloom fabrics and entitled to the benefit of Sec.5(3) of the C.S.T Act. Since tax was not liable to be charged on the handloom products as per the said Act, the petitioner filed monthly return claiming exemption. That was rejected and the Assessing Authority passed assessment orders and imposed penalty also. Aggrieved by the orders, appeals were filed before the Appellate Authority, which were also dismissed by a common order. It is aggrieved by all these proceedings, these revisions are filed.
O.T.Rev.Nos.66, 74, 79, 81, 85, 88, 103, 104, 105, 108, 109 and 119 of 2017
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contained in paragraph 6 of the common order, which reads thus :-
“6. Thus these are the rival contentions. First Appellate Authority has stated that in the wake of introduction of Finance Bill 2014, turnover tax was levied by virtue of Section 4 of Provisional collection of Revenue Act 1985. Later the amendment came into effect from 1/4/14, by the passing of Act. Hence contentions that the provision came into effect only on 23/7/14 are not well taken. As rightly pointed out by the first Appellate Authority, appellant would only say that substantial portion of his local sales are sales to exporters and hence exempt from tax. Specific contentions are not taken regarding the quantum of those sales. To substantiate it's contentions appellant has submitted photocopies of purchase orders 8 in numbers and photocopies of invoices issued by him along with appeal memorandum. We shall first consider these purchase orders. Except the photocopy of purchase order of M/s Zanav Home collection dated 05/11/14, none of the other copies have a photo impression of seal or signature of authorised signatory who had signed the original and in the purchase order of M/s Zanav, the words 'Handwoven Fabrics' appear to be printed subsequently. It is evident that photocopies are cooked up. Photocopies of certificates annexed to notes are from running page 15 to 48, both inclusive. Photocopies of invoices are from running page 62 to 107, both inclusive. None of the invoices are in the prescribed format of a Form 8 bill. Commodity column is not there. Neither is it described as handwoven. More
O.T.Rev.Nos.66, 74, 79, 81, 85, 88, 103, 104, 105, 108, 109 and 119 of 2017
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important, rate of tax column is also not there and neither is the commodity shown to be exempt. It is not clear whether purchasers named in the invoices are exporters. Coming to the purchase orders produced along with notes, these are from running page 116 to 129, both inclusive. Those numbered from 118 to 129 do not bear photo impression of seal of the concern or signature of authorised signatory, making it apparently clear that these were cooked up for the purpose of this appeal. Of the remaining two purchase order copies, that of M/s.Zanav Home Collection contains a similar interpolation which we have noticed in the purchase order of same concern submitted along with appeal memo. In the remaining purchase order of M/s.Ambadi Enterprises, photoimpression of seal of concern is not seen and signature of authorised signatory is not photo-impression but original which cannot be as original order alone will be signed. Moreover name of the signatory or his official capacity as such is not given.
For these reasons purchase order copies are not reliable materials to substantiate the contentions addressed by the appellant's representative. Copies of invoices are also not reliable material, for the reasons stated earlier. Apart from all these what is to be proved as per Section 5(3) of CST is that sale is preceded by a previous agreement/order for export sales. Documents sought to be relied upon mentioned above are not sufficient to prove this aspect. No H Form declarations were submitted and no reason is given for their non-production. Hence contentions taken regarding exemption available under Section 5(3) fail. Further arguments that sale is of handloom cloth are also
O.T.Rev.Nos.66, 74, 79, 81, 85, 88, 103, 104, 105, 108, 109 and 119 of 2017
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not proved. Returns submitted by the dealer of previous year is not by itself sufficient to prove this fact. Invoices submitted, as per the index to notes, relate to previous assessment year as well. We have already discussed the probative value of those invoice copies earlier. Not a single invoice describes the commodity covered by it as exempted item or as handloom/handwoven cloth. Therefore, production copy of certificate issued from Government classifying the appellant as a small scale unit producing yarn and handloom cloth, copy of notification and copy of passbook issued to workers from Handloom Workers Welfare Fund Board are not sufficient to prove that there is no sale of textiles made by powerlooms/factory process.
Appellant has also given a breakup of his sales, figures to demonstrate that interstate sales have also been reckoned to assess 6A turnover. Apart from the break up details of sales, appellant has not submitted any reliable material to prove its contentions in this regard. We have already found that copies of purchase orders and invoices submitted cannot be relied upon for the reasons given in earlier paragraphs. Not a single C Form or a copy thereof was produced by the dealer. No reason is given either for nonproduction.”
A reading of the aforesaid paragraph would show that the findings of the Tribunal are entirely factual and are based on the materials available before it. These findings do not justify any interference by this Court. Hence, we decline to entertain these revisions.
O.T.Rev.Nos.66, 74, 79, 81, 85, 88, 103, 104, 105, 108, 109 and 119 of 2017
-: 5 :-
Therefore, these revisions are only to be dismissed
and we do so.
Sd/-
ANTONY DOMINIC JUDGE
Sd/-
DAMA SESHADRI NAIDU
JUDGE
Jvt/6.7.2017
M/s. Dinesh Textiles Chaithanya
State of Kerala
Anton Dominic
Dama Seshadri Naidu
As recorded by the court registry
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