Dismissed

State of Kerala v. Sri. Haridas.P.

Kerala HC5 Jul 2018OT.Rev/122/2014

Case brief

AI extract

What is this about?

In this revision, the Division Bench addressed whether a penalty under the Kerala Value Added Tax Act for non-filing of a declaration was sustainable when the specific form required for such declaration was prescribed after the transaction. The Court held that the Tribunal correctly found the penalty untenable as it relied on a form non-existent at the time.

What did the court decide?

Revision petition dismissed; question answered in favour of the assessee (Haridas.P); parties ordered to bear their respective costs.

State of Kerala Vs Sri. Haridas.P. — Kerala HC (2018) — LawSathi Research

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940

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OT.Rev.No. 122 of 2014

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----------------------TA(VAT) 441/2012 OF KERALA VALUE ADDED TAX ADDITIONAL APPELLATE TRIBUNAL, ERNAKULAM

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-----

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REVISION PETITIONER/RESPONDENT/REVENUE

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STATE OF KERALA

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BY GOVERNMENT PLEADER SRI MOHAMMED RAFIQ

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RESPONDENT(S)/APPELLANT/ASSESSEE:

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SRI.HARIDAS.P, ANUGRAHA ENTERPRISES, POONKUNNAM, THRISSUR.6800002

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BY ADVS. SRI.E.P.GOVINDAN SMT.G.DEEPA SRI.K.G.SOMANATH

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THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 05-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.V.

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OT.Rev.No. 122 of 2014

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APPENDIX

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PETITIONERS ANNEXURES:

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ANNEXURE A: TRUE COPY OF THE PENALTY ORDER DATED 30.6.2010 PASSED BY THE INTELLIGENCE INSPECTOR,SQUAD NO 11 COMMERCIAL TAXES,THRISSUR.

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ANNEXURE B: TRUE COPY OF THE FIRST APPELLATE ORDER DATED 17.2.2012 PASSED BY THE ASSISTANT COMMISSIONER (APPEALS),COMMERCIAL TAXES,THRISSUR.

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ANNEXURE C: CERTIFIED COPY OF THE ORDER OF THE TRIBUNAL DATED 31.1.2014 IN T.A (VAT) NO 441/2012.

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RESPONDENTS ANNEXURES: NIL

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K.V. P.S.TO JUDGE

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9.07.2018

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K. VINOD CHANDRAN & ASHOK MENON, JJ.

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O.T. [Rev.] No.122 of 2014

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---------------------------------Dated this the 5^th day of July, 2018

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O R D E R

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K. Vinod Chandran, J.

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The issue raised by the State in the revision is in a very small compass as to whether when the Form in which a declaration, as per the statute had to be made, was not prescribed in the Rules; whether its absence could lead to a penalty. The question of law raised is re-framed as follows:

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“Has not the Tribunal erred in finding that the penalty could not have been imposed for reason of the Form 8FA prescribed by Rule 66(6)(ba) was introduced after the detention, especially when there was already an existing form under Form 8F?”

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We need only look at the chronology of the

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amendments under the Kerala Value Added Tax Act,

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O.T. [Rev.] No.122 of 2014

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2003 and the Kerala Value Added Tax Rules, 2005. As brought in by Finance act, 2006 with effect from 01.07.2006, clause (d) of Section 46(3) covered all exits and entry into the State in which instance a declaration in the form prescribed had to be filed. As it then stood, the prescription was by Rule 66(6)(a),which prescribed that the goods brought from outside the State, the bill of sale, invoice or cash memoranda shall contain the particulars specified in Form 8F. Subsequently, the Rule stood amended by SRO 385/2007, by which Form 8F was prescribed as the declaration referred to in Clause (d) of Section 46(3). Then any exit or entry would have to be supported by a declaration in Form 8F.

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But later, the State amended the Act in the year 2008 by Act 21 of 2008 introducing a specific provision, where goods are imported into the State through sea, air or rail, wherein a declaration was

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O.T. [Rev.] No.122 of 2014

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mandated before the Commercial Tax Officer having jurisdiction over the place of import as may be prescribed. When sub-clause (e) was introduced to Section 46(3), there was a requirement for a consequential prescription in the Rules, which was made only in the year 2010 and Form 8FA was prescribed. The subject import in the instant case was prior to the prescription.

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The learned Senior Government Pleader would submit that Section 8F would suffice and at least that declaration should have been made. We are not inclined to accede to the said contention, since the Act was amended providing for a declaration before the Commercial Tax Officer in the prescribed form in instances of import through air, sea or rail. Form 8F was applicable only for Clause (d). Rule 66(6)(a) specifically spoke of the declaration under clause (d) of Section 46(3). Though Clause

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O.T. [Rev.] No.122 of 2014

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(d) spoke of the entire exports and imports

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specific categories were culled out from the provision and placed in Clause (e). In which event there should have been a prompt prescription made in the Rules.

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In such circumstances, we are not inclined to interfere with the order of the Tribunal. We answer the question in favour of the assessee and against the Revenue. Revision stands dismissed leaving the parties to suffer their respective Costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

Sd/-

ASHOK MENON,

JUDGE.

//True Copy//

P.A. To Judge

sp/06/07/18

State of Kerala v. Sri. Haridas.P.

Case brief

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State of Kerala v. Sri. Haridas.P.

Case brief

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