K.A.Jose Civil Contractor v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE K. HARILAL WEDNESDAY, THE 18TH DAY OF DECEMBER 2013/27TH AGRAHAYANA, 1935 ST.Rev..No. 92 of 2012 -------------------------AGAINST THE ORDER IN TA 41/2011 OF THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDL. BENCH, PALAKKAD. PETITIONER(S)/APPELLANT: ---------------------------------------------- K.A.JOSE CIVIL CONTRACTOR, CHITTILAPPILLY KUNJAPPU ELTHURUTH P.O., THRISSUR DISTRICT. BY ADV. SRI.BEJOY CHERIYAN RESPONDENT(S)/RESPONDENT: -------------------------------------------------- STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. S. SUDHEESH KUMAR THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 14/8/2013, ALONG WITH STRV. 93/2012 AND CONNECTED CASES, THE COURT ON 18-12-2013 DELIVERED THE FOLLOWING: S.T.Rev.92/2012 ## APPENDIX ## PETITIONER'S EXHIBITS:- ANNEXURE-I: TRUE COPY OF THE ASSESSMENT ORDER DATED 26/3/2003 PASSED BY THE ADDL. SALES TAX OFFICER(WC & LT), THRISSUR. ANNEXURE-II:TRUE COPY OF THE RR NOTICE DATED 21-1-2009 UNDER SECTION 7 OF THE RR ACT. ANNEXURE-III:TRUE COPY OF THE COMMON ORDER DATED 26/4/2010 FOR 1998-'99, 1999-2000 AND 2000-01 PASSED BY THE FIRST APPELLATE AUTHORITY. ANNEXURE-IV:TRUE COPY OF THE COMMON ORDER DATED 28-3-2012 PASSED BY THE SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD IN T.A.NO.41, 42 AND 43 OF 2011. ANNEXURE-V: TRUE COPY OF THE WORK ORDER ISSUED BY THE KERALA STATE POLICE HOUSING AND CONSTRUCTION CORPORAOTION LTD. FOR CONSTRUCTION OF POLICE STATION BUILDING AT CHALAKUDY DURING 1998-99 (RELEVANT PAGES) /TRUE COPY/ P.S. TO JUDGE. ## **K. M. JOSEPH & K. HARILAL, JJ.** **----------------------------------------------** **S. T. Rev.Nos.92, 93 & 98 of 2012 ----------------------------------------------Dated this the 18[th] December, 2013** ## **JUDGMENT** ## **K.M. Joseph, J** The petitioner is the same in all these Revisions filed under Section 41 of the KGST Act, 1963. The assessing officer assessed the petitioner to tax by levying tax at 5 per cent. Thereafter, the appellant preferred three Appeals for the assessment years 199899, 1999-2000 and 2000-01. The Appeals were filed belatedly. There was a delay of 2107 days for 1998-99, 1506 days for 19992000 and 1380 days for the year 2000-2001. The reason for condoning the delay was that on receipt of the assessment orders, the petitioner represented before the assessing officer that the levy of tax at five per cent on a portion was not correct and sought rectification. In other words, his contention was that rectification applications were filed and in the meantime, revenue recovery ST.REV.92, 93 & 98/2012 2 proceedings were taken. Therefore, the delay may be condoned. The Deputy Commissioner (Appeals) finds as follows: He verified the records. As per the records, the petitioner filed proper compounding application under Section 57 of the Act and accordingly the office completed the orders treating as two per cent and five per cent respectively. The appellate authority found that the rectification application is to be only on an error apparent on the face of the record. It is found that here no error apparent happened and only remedy was to file appeal and in the circumstances, the delay could not be condoned. The tribunal finds that the Appeals are not maintainable as the Appeals were rejected on the ground of delay. It was also found that the delay was not properly explained and, therefore, there is no reason to interfere in the order of the first appellate authority. Hence these Revisions. 2. We heard the learned counsel for the petitioner and the learned Government Pleader. ST.REV.92, 93 & 98/2012 3 3. Learned counsel for the petitioner cited the following case law: _**Balakrishnan Nair**_ v. (i) In _**State of Kerala**_ [(2007 (2) KLT SN 16 (case No.24)] this Court took the view that the revision is not maintainable under Section 41 of the KGST Act,1963, if appeal before the tribunal is dismissed on the ground of delay in filing the appeal and it will be open to challenge the orders probably in a writ petition. (ii) In _**Solar Cashew**_ v. _**State of Kerala**_ (2009 (2) KLT 486), this Court took the view that an appeal under Section 39 of the Act does not lie to the tribunal when the appellate authority dismisses the appeal on account of non-payment admitted tax and it was also found that the order rejecting the Appeals on the ground of non-payment of admitted tax, is not an order under Section 39(4) or 39(7) of the Act and no revision lies against the order of the tribunal. (iii) In M/s. Kavitha Agencies v. State of Kerala (O.T.Rev.No.103/11) and connected cases, the revisions were filed against the orders of the tribunal were rejected on the ground that the ST.REV.92, 93 & 98/2012 4 Appeals were defective inasmuch as certified copy of the appellate orders were not produced. The Division Bench of this Court followed the Judgment which we have referred to earlier and found that revisions under Section 63 of the Kerala Value Added Tax and the KGST Act are similarly worded and, therefore, the revisions were not maintainable. (iv) Reference is made to the Judgment of this Court in S.T. v. Rev.No.92/11 ( _**State of Kerala George Thomas**_ ). Therein this Court directed that opportunity shall be given to the assessee to produce the contracts and thereafter the officer could verify whether the reassessment completed under Section 19(1) in respect of the items of work executed for PWD, ie. fish farming was correctly made. v. (v) In _**Kunhayammed and Others State of Kerala And Another**_ ((2000) 245 ITR 360), the Apex Court was considering the effect of a special leave petition being dismissed by a nonspeaking order. The Court took the view that once special leave was granted and an appeal was dismissed by a non-speaking order, the ST.REV.92, 93 & 98/2012 5 doctrine of merger applies. While in the case of refusing special leave to appeal, whether by a speaking order or not, it does not attract the doctrine of merger. 4. Learned counsel for the petitioner would contend that there were valid reasons for the delay, ie. the petitioner had invoked the remedy open to him and sought for rectification. He drew our attention to Section 7 of the Act and contended that there was no ground for assessing the petitioner on part of the turnover at five per cent. Learned Government Pleader would contend that the revisions are not maintainable and there is no ground even on merits and the delay is huge delay. 5. Petitioner has also purported to produce the work order issued to him. According to him, they show that the works undertaken are only civil contract works liable to tax only at the rate of two per cent under Section 7(7) of the Act. 6. The question to be decided is whether the Revisions are maintainable under Section 41 against an order of the tribunal ST.REV.92, 93 & 98/2012 6 dismissing the Appeals on the ground that the Appeals were not maintainable as the Appeals before the tribunal were against orders passed by the first appellate authority dismissing the Appeals before him as time barred. The tribunal has also rendered a finding that no ground exist for condonation of the delay. A Revision under Section 41 is maintainable only on the ground that the tribunal has either decided erroneously or failed to decide any question of law. The Revision is maintainable before the High Court under Section 41 against an order under sub-section (4) or sub-section (7) of Section 39. Sub-section (7) of Section 39 provides for right to seek review of the order of the appellate tribunal. The orders passed by the tribunal in all these cases are not under sub-section (7) of Section 39. Sub-section (4)(a) of the KGST Act relates to orders of assessment or penalty. Undoubtedly, this is an order relating to an assessment. The appellate tribunal under sub-section (4)(ai) may confirm, reduce, enhance or annul the assessment or penalty or both. The tribunal has not passed any order under the same as such. Sub-section (4)(a)(ii) provides that ST.REV.92, 93 & 98/2012 7 the tribunal may set aside the assessment and direct the assessing officer to make fresh assessment. The said provision is also not applicable. Sub-section 4(a)(iii) provides that the appellate tribunal may pass such other orders as it may think fit. 7. Even proceeding on the basis that the Appeal is maintainable, that is, the order dismissing an appeal on the ground that it is barred by time results in an order confirming the assessment which question we need not go into in these cases, as further question arises whether it could be said that the tribunal has failed to decide any question of law or erroneously decided a question of law ? As to whether the delay should be condoned in the cases, cannot be said to give rise to any question of law. Further more, even assuming that there is a question of law, we find that we cannot hold in the facts of this case that the question of law was erroneously decided. We have already referred to the period of delay in each of the Appeals. The only reason stated is that the party had filed representation before the assessing officer seeking rectification and that the revision petitioner/appellant was ST.REV.92, 93 & 98/2012 8 under the impression that the assessing officer has withdrawn the assessment. This reason has not weighed with the tribunal. It cannot be said that there is a failure to decide a question of law, leave alone an erroneous decision being rendered on a question of law. There is no merit in these Revisions Petitions and consequently they will stand dismissed. **K. M. JOSEPH, JUDGE K. HARILAL, JUDGE** **kbk.**