In revisions regarding years 2005-06 and 2006-07, the Kerala High Court held that a rectification under Rule 6(9) was inappropriate as no substantive error of fact was present despite the Assessing Officer issuing a notice under the wrong provision.
Revisions dismissed without order as to costs as no substantial question of law arose.
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
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940
OT.Rev.No. 147 of 2015
TA(VAT).NO.348/2014 OF KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDL.BENCH, ERNAKULAM
REVISION PETITIONER/APPELLANT/ASSESSEE:
JOSE VETTIKKAT, TECHNO RUBBERS, EDAYAR, ALUVA.
BY ADVS.SRI.AJI V.DEV SRI.SUSHANTH.J.
RESPONDENT/RESPONDENT/REVENUE :
STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT (TAXES), SECRETARIAT, THIRUVANANTHAPURAM -695 001
BY SPL.GOVERNMENT PLEADER (TAXES) SRI.MUHAMMED RAFIQ
THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 02-07-2018, ALONG WITH OT.REV.NO.148 OF 2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
6/7/2018
OT.Rev.No. 147 of 2015
APPENDIX
PETITIONER'S ANNEXURRES:
ANNEXURE 1 COPY OF THE ORIGINAL ASSESSMENT ORDER FOR 2005-06 DATED 01/08/2012 ANNEXURE 2 COPY OF THE RE-OPENED ASSESSMENT ORDER PASSED U/RULE 6(7) DATED 08/04/2013 ANNEXURE 3 COPY OF THE APPELLATE ORDER PASSED BY THE 1ST APPELLATE AUTHORITY DATED 31/01/2014 ANNEXURE 4 APPELLATE ORDER IN ORIGINAL PASSED BY THE HON'BLE APPELLATE TRIBUNAL DATED 30/04/2015 ANNEXURE 5 TRUE COPY OF THE JUDGMENT IN (2015)82VST335(RAJ)
RESPONDENT'S ANNEXURES: NIL
/TRUE COPY/
P.A.TO JUDGE
sts 6/7/2018
K. VINOD CHANDRAN & ASHOK MENON, JJ.
--------------------------------------O.T. [Rev.]. Nos.147 & 148 of 2015
--------------------------------------Dated this the 2nd day of July, 2018
O R D E R
K. Vinod Chandran, J.
Whether the omission of an Assessing Officer to verify the 'C-Forms' produced could be rectified under Rule 6(9) of the Central Sales Tax [Kerala] Rules, 1957 [for brevity, the Rules of 1957] is the question arising in both the revisions for the years 2005-2006 and 2006-2007. The learned Counsel for the assessee points out that Annexure I order was issued completing the assessment of the assessee under Rule 6(5) of the Rules of 1957. Subsequently a notice was issued pointing out that certain 'C-Forms' were not available in the files and hence there was a rectification made.
O.T. [Rev.]. Nos.147 & 148 of 2015
2
produced or not is a factually disputable issue. The learned Counsel asserts that the C forms in its entirety was produced on a verification of which the assessment was completed at the first instance.
Hence there could be no rectification carried out. The learned Counsel also submits that the notice
O.T. [Rev.]. Nos.147 & 148 of 2015
3
indicates initiation of proceedings under sub-rule 7 of Rule 6, in fact sub-rule 8 should have been resorted to by the Assessing Officer.
submits that the quoting of sub-rule 7 was a bonafide error and it should have been sub-rule 9 of Rule 6 of the Rules of 1957. The learned Government Pleader also has produced the files to argue for upholding the order of the Assessing Officer.
In any event,having gone through the files, we see a number of 'C-Forms' having been produced, as available in the files, against which the concessional rate was rightly granted by the Officer. Immediately after the order was passed, the Assessing Officer noticed the discrepancy and
O.T. [Rev.]. Nos.147 & 148 of 2015
4
hence a notice was issued under sub-rule 5 (wrongly
quoted) on 25.02.2013. We see from the files an
objection having been filed by the assessee/ petitioner, in which only technical grounds have been raised as to whether the rectification could be resorted to and the correct provision to be applied. We do not see even a statement that the entire 'C-Forms' were produced.
within a period of six months and there was not even a contention raised that the 'C-Forms' were
O.T. [Rev.]. Nos.147 & 148 of 2015
5
already produced; in the objection filed. If the contention was raised, then it would not have been a mistake, which could be rectified. The assessee having no contention that the 'C-Forms' were produced in its entirety, before the Assessing Officer at the first instance, cannot now turn around and argue that rectification should be disallowed for reason of a conclusion on facts having been arrived at and there arising a debatable issue.
O.T. [Rev.]. Nos.147 & 148 of 2015
6
concessional rate was allowed; then it was a mistake, which was apparent from the face of the record. We do not think that either sub-rule 7 or sub-rule 8 of Rule 6 would be applicable. We find the appropriate Rule to be sub-rule 9 of Rule 6. The wrong quoting of a provision for invocation of a proceeding; will not vitiate the order passed, solely on that ground. We hence reject the revisions without any order as to costs finding no substantial question of law arising from the order of the Tribunal.
Sd/-
K. VINOD CHANDRAN,
JUDGE.
Sd/-
ASHOK MENON,
JUDGE.
//True Copy//
P.A. To Judge
sp/02/07/18
2 issues framed by the court
Whether the omission of an Assessing Officer to verify 'C-Forms' produced could be rectified under Rule 6(9) of the Central Sales Tax [Kerala] Rules, 1957.
Whether a notice quoting the wrong sub-rule vitiates the proceeding.
2 provisions across 1 enactments
Jose Vettikkat
State of Kerala
Vinod Chandran
Ashok Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
