Review petition challenging Sales Tax Tribunal order denying concessional tax rate and sales return claims due to delay. Court dismissed petition holding no error apparent on record and rejecting documents produced belatedly.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
RP NO. 1259 OF 2023
AGAINST THE ORDER IN OT.Rev 108/2022 OF HIGH COURT OF KERALA REVIEW PETITIONER/PETITIONER:
M/S WELLFIT INTERNATIONAL AUTOWORLD PVT LTD 34/586D1, WELLFIT AUTOWORLD, EDAPPALY (PO), PADIVATTOM, KOCHI- 682024 REPRESENTED BY ITS MANAGER & AUTHORISED SIGNATORY NAUSHAD.A.J., S/O M. ABDUL JALEEL, AGED 47, RESIDING AT NAHAR, PALLILAMKARA, HMT COLONY (PO), THRIKKAKKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM - 683503, PIN - 682024
BY ADV NOUSHAD A (PARTY IN PERSON)
RESPONDENTS:
1 STATE OF KERALA II CIRCLE, KALAMASSERY, CIVIL STATION, KAKKANAD, ERNAKULAM- 682030, PIN - 682031
2 STATE OF KERALA COMMERCIAL TAXES, ERNAKULAM, PIN – 682016 SRI.VK.SHAMSUDHEEN, SR.GP
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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DR.A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
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RP No.1259 of 2023
...................................................
Dated this the 8th day of December, 2023
O R D E R
Mohammed Nias.C.P.J
This review petition is filed challenging the order in OP(Rev)No.108/2022 dated 7.6.2023 by which a revision petition filed against the order dated 23.2.2021 in TA (VAT) No.269/2017, as well as the order dated 29.10.2021 in Review Application No.3/2021 filed in the said appeal before the Sales Tax Appellate Tribunal, Ernakulam was rejected.
2 . The petitioner, a dealer in seat covers, had submitted a return for the financial year 2012-2013 showing a total taxable turnover of Rs.1,78,24,445/and availed a concessional rate of 2% and paid tax of Rs.3,56,545/-. Department finding that the “C” forms produced by the petitioner were only for a part of the total turnover and that there were no “C” forms to support the claim of the concessional rate of tax for the
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balance part of the turnover, issued a notice directing the petitioner to produce the documents necessary to support the claim for concessional rate of tax for the remaining part of the turnover. The petitioner had produced debit notes to support his claim for interstate purchase and sales return of Rs.1,79,600/-. However, the assessing authority denied the claim for concessional rate of tax as well as the claim for sales returns and confirmed the differential demand of tax on the petitioner. In the appeal preferred by the petitioner against the order of the assessing order, the first appellate authority after perusing the documents produced by the petitioner to support his contention regarding the sales return/rejected goods for Rs.11,28,624/- dismissed the appeal in relation to the said claim by observing that claim was not made within the time stipulated under the statute. However, a limited relief was granted in respect of turnover of Rs.4,18,600/- for which he had submitted the “C” form declarations. Though a further appeal was carried before the Tribunal, the same was rejected. A review attempt had also failed. It was those orders that were unsuccessfully challenged before us which resulted in the order impugned before us.
3. The learned counsel had argued that it was only on a technical ground of delay that a substantial benefit available to the petitioner as regards the sales returns was rejected. We had noticed that the contention was that consequent to a sales return the goods in question are to be seen as never having left the hands of the petitioner and
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therefore not culminated in any taxable transaction on which tax could have been levied. After considering the rival submissions, we found that the petitioner had failed to make any claim for sales returns within the time mandated by the statutory provision namely six months from the date of the sales transaction and the claims for sales returns had been admittedly made beyond that period. We therefore, found no reason to interfere with the order of the Appellate Tribunal as it was a settled principle in taxation that a statutory provision providing for an exception had to be strictly construed in favour of the revenue and against the assessee. Accordingly, we found that the questions of law raised in the revision petition had to be answered in favour of the revenue and against the assessee and by doing so we dismissed the revision petition preferred by the petitioner herein.
In this review, the same grounds are attempted to be re-agitated. We had given cogent reasons for the decision to affirm the order of the Tribunal. The documents now attempted to be produced were all available with the assesse even at the time when the statutory proceedings were pending. We see no reason to convert this review petition into a second hearing. It is trite that only an error apparent on the face of the record or any analogous reason can be considered in a review petition. We do not find any error apparent on the face of the record. Accordingly, we find the review petition to be without any merit
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and the same is dismissed in limine .
Sd/-
DR.A.K. JAYASANKARAN NAMBIAR, JUDGE
Sd/MOHAMMED NIAS C.P. JUDGE
dlk 11.12.2023
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APPENDIX OF RP 1259/2023
PETITIONER'S ANNEXURES
| Annexure 1 | COPY OF ORDER OF HONOURABLE TRIBUNAL NO. TA(VAT) NO. 269/2017, DATED 23/02/2021 |
|---|---|
| Annexure 2 | COPY OF ASSESSMENT ORDER NO. 32071300773/2012-13, DATED 07/11/2013 |
| Annexure 3 | COPY OF REFUND REJECTION ORDER NO. 32071300773/2012-13, DATED 31/12/2013 |
| Annexure 4 | COPY OF CORRESPONDENCE WITH DEALER, CYNOSURE INTERNATIONAL, DATED 01/08/2012, 15/11/2012, 16/01/2018 IN SUPPORT OF REJECTION OF GOODS |
| Annexure 5 | NOC FROM PREVIOUS COUNSEL |
| Annexure 7 | PETITION TO ACCEPT DOCUMENTS |
| Annexure -1 | COPY OF ASSESSMENT ORDER NO. 32071300773/2012-13, DATED 07/11/2013 |
| Annexure -2 | COPY OF ORDER OF HONOURABLE TRIBUNAL NO. TA(VAT) NO. 269/2017, DATED 23/02/2021 |
| Annexure -3 | COPY OF CORRESPONDENCE WITH DEALER, CYNOSURE INTERNATIONAL, DATED 01/08/2012, 15/11/2012, 16/01/2018 IN SUPPORT OF REJECTION OF GOODS |
| Annexure -4 | COPY OF REFUND REJECTION ORDER NO. 32071300773/2012-13, DATED 31/12/2013 |
1 issue framed by the court
Whether there is an error apparent on the face of the record warranting a review of the Tribunal order rejecting sales return claims
M/S WELLFIT INTERNATIONAL AUTOWORLD PVT LTD
STATE OF KERALA
A.K. JAYASANKARAN NAMBIAR
MOHAMMED NIAS C.P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
