Partly allowed

State of Kerala, v. M/S.Vikranth Tyres Ltd.

Kerala HC19 Jun 2020ST.Rev./15/2017

Case brief

AI extract

What is this about?

The High Court of Kerala allowed two sales tax revisions filed by the State against a Tribunal order dismissing appeals on limitation grounds regarding sales returns. The Court remanded the matter for fresh consideration on facts by the Tribunal, set aside the Tribunal order, and stated that interest liability shall not run until the date of filing the revisions.

What did the court decide?

Both ST Revisions allowed. Order of Tribunal set aside for fresh consideration on merits. Interest liability restricted until date of filing revisons.

State of Kerala, Vs M/S.Vikranth Tyres Ltd. — GST and Indirect Tax | Kerala HC (2020)

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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 T.R.RAVI

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FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942

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ST.Rev.No.13 OF 2017

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AGAINST THE ORDER IN INTP NO.95/2012 IN T.A. NO.79/2012 DATED 0906-2016 OF THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLANTE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM

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REVISION PETITIONER/APPELLANT/RESPONDENT/REVENUE:

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

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BY SENIOR GOVT.PLEADER SRI.MOHAMMED RAFIQ

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RESPONDENT/RESPONDENT/APPELLANT/ASSESSEE:

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M/S.VIKRANTH TYRES LTD. (J.K. TYRES AND INDUSTRIES) PALARIVATTOM, COCHIN, PIN. 682025.

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R1 BY ADV. SMT.MARIAM MATHAI R1 BY ADV. SRI.SAJI VARGHESE

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THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 19.06.2020, ALONG WITH ST.Rev.NO.15/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ST.Rev.No.13 OF 2017

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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 T.R.RAVI

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FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942

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ST.Rev..No.15 OF 2017

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AGAINST THE ORDER IN INTP NO.96/2012 IN T.A. NO.80/2012 DATED 09-06-2016 OF THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLANTE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM

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REVISION PETITIONER/APPELLANT/RESPONDENT/REVENUE:

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

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BY SENIOR GOVT.PLEADER SRI.MOHAMMED RAFIQ

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RESPONDENT/RESPONDENT/APPELLANT/ASSESSEE:

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M/S.VIKRANTH TYRES LTD. (J.K. TYRES AND INDUSTRIES) PALARIVATTOM, COCHIN, PIN. 682025.

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R1 BY ADV. SMT.MARIAM MATHAI R1 BY ADV. SRI.SAJI VARGHESE

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THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 19.06.2020, ALONG WITH ST.Rev.NO.13/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ST.Rev.No.13 OF 2017

O R D E R

K. Vinod Chandran, J.

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The revisions are with respect to the assessment years 2002-2003 and 2003-2004. The order, against which the sole question of law raised, rejected the appeal as a consequence of the rejection of the delay petition, where the delay was of 42 days. Learned Senior Government Pleader appeared and argued that the question of law is only with respect to the dismissal on grounds of limitation, when the delay was a mere 45 days and the Tribunal had the power to condone such delay. It is pointed out that there was satisfactory explanation shown by the State for condoning the delay. Learned Senior Government Pleader seeks for a remand, especially since the Tribunal is the last fact finding authority and the issue with respect to the sales return has to be

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ST.Rev.No.13 OF 2017 4

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considered on facts by the Tribunal.

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2. Learned Government Pleader fairly placed on record a decision of a Full Bench of this Court

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reported in Travancore Trading Corporation v. Commercial Tax officer [2016 (4) KLT 837 (F.B.)] , wherein a revision against an order of dismissal as a consequence of rejection of the delay condonation application was held to be maintainable. It is pointed out that the Full Bench had also found that it is within the wisdom of the Bench hearing the revision to decide as to whether the grounds raised as against the order of the subordinate authority, ie. herein the assessing authority and the first appellate authority, are to be examined or not.

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3. The learned Counsel appearing for the respondent points out that when delay before the Tribunal was 45 days, the revision itself was filed with more than 250 days delay. It is pointed out that

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ST.Rev.No.13 OF 2017 5

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the assessee would be unnecessarily prejudiced, insofar as the interest liability cast on them.

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4. We have looked at the issue agitated before the Assessing Authority. The Assessing Authority was of the opinion that the sales returns claimed by the assessee were not in fact sales returns. The Assessing Officer found that invoices and consequent credit notes were issued, but there were no consequent entries made in the Stock Register, for the movement of the goods from the assessee to their dealer pursuant to the sale effected. It was also found that there were no debit notes issued by the purchasing dealer.

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5. The assessee however, had contended that those were unfructified sales. The First Appellate Authority found that the claim was only of unfructified sales and there was no delivery effected. Definitely, there should be an examination

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ST.Rev.No.13 OF 2017

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of the invoices and the transactions, by the Tribunal

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to arrive at the correct findings on facts.

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6. In such circumstances, we are of the

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opinion that the matter has to be looked at by the Tribunal and hence we remand the same for fresh consideration on merits. The order of the Tribunal is set aside for the purpose of such consideration. The Tribunal shall consider the issue expeditiously, since the matter is with respect to KGST regime, which ended in the year 2006-2007. We make it clear that even if the assessee is found liable to pay up the demand, the interest shall not run from the last day of limitation to file the appeal before the Tribunal, till the date on which the revisions were filed, the latter of which dates, we find from the revision memorandums to be respectively on 14^th and 22^nd of August, 2017.

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Without any finding on the factual issue

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ST.Rev.No.13 OF 2017

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before the Assessing Officer, both S.T. Revisions are

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allowed. No costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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Sd/-

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T.R. RAVI, JUDGE.

sp/19/06/2020

//True Copy//

P.A. To Judge

ST.Rev.No.13 OF 2017

APPENDIX OF ST.Rev. 13/2017

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE PROCEEDINGS OF ASSISTANT COMMISSIONER, SPECIAL CIRCLE, ERNAKULAM DATED 31.07.2010. ANNEXURE B TRUE COPY OF THE ORDER OF FIRST APPELLATE AUTHORITY. ANNEXURE C CERTIFIED COPY OF THE ORDER OF TRIBUNAL DATED 09.06.2016. ANNEXURE C1 TRUE COPY OF ANNEXURE C

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ST.Rev.No.13 OF 2017

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APPENDIX OF ST.Rev. 15/2017

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE PROCEEDINGS OF ASSISTANT COMMISSIONER, SPECIAL CIRCLE, ERNAKULAM DATED 31.07.2010. ANNEXURE B TRUE COPY OF THE ORDER OF FIRST APPELLATE AUTHORITY. ANNEXURE C TRUE COPY OF THE ORDER OF TRIBUNAL DATED 09.06.2016.

State of Kerala, v. M/S.Vikranth Tyres Ltd.

Case brief

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State of Kerala, v. M/S.Vikranth Tyres Ltd.

Case brief

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