High Court of KeralaDivision Bench2021-01-14Revision allowed; Tribunal order set aside; rem...

Kochi Refineries Ltd. v. State of Kerala

Case / Petition Number:ST.Rev. No.28/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. V. Bhatti
Bechu Kurian Thomas
Judgment Date: 2021-01-14
Court Decision / Holding: The S.T.(Rev) No.28/2016 revision is allowed. The order of the Sales Tax Appellate Tribunal in TA 47/2012 is set aside and the matter is remitted to the Tribunal for disposal in accordance with law, after affording the petitioner an opportunity to show cause for excusing the delay in submitting the C-forms, and with the petitioner depositing Rs.25,000 as costs through the assessing officer within four weeks. The parties are directed to appear before the Tribunal on 23.02.2021. The case thus proceeds for fresh adjudication on the belated C-Forms with proper participation and verification of originals.
Final Disposition: Revision allowed; Tribunal order set aside; remanded to Tribunal with conditions including costs and opportunity to explain delay; notice for appearance before Tribunal on 23.02.2021.

Parties to the Case

Appellants / Petitioners

M/S.KOCHI REFINERIES LTD., Ambalamugal, now amalgamated with Bharat Petroleum Corporation Ltd

Respondents

State of Kerala represented by Joint Commissioner (Law) Commercial Taxes, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• K. I. Mayankutty Mather
• R. Jaikrishna

Counsels for Respondents

• Government Pleader

Case Synopsis & Summary

This is a Kerala High Court Sales Tax Revision under Section 41 of the Kerala General Sales Tax Act, 1963, concerning the assessment year 2004-05. The petitioner, M/s. Kochi Refineries Ltd. (now amalgamated with Bharat Petroleum Corporation Ltd), challenges the order of the Kerala Sales Tax Appellate Tribunal, Ernakulam in TA 47/2012, which rejected belated C-Forms furnished by the assessee. The core issue is whether the Tribunal properly counted the delay in supplying C-Forms and whether the explanations offered for the delay were adequately considered. The petitioner contends that the Tribunal failed to give due weight to the delay explanations, and points to inconsistent treatment, noting that in an identical prior case (S.T. Rev. 43/2016) the Court set aside a Tribunal order and remitted for disposal in accordance with law, with directions to allow an opportunity to explain delay and to verify originals of C-forms. The respondent, on the other hand, does not dispute the circumstances and recognizes the applicability of the controlling dictum of the Apex Court in Andhra Pradesh v. Hyderabad Asbestos Cement Production Ltd (1994) 94 STC 410. The High Court, after considering the authorities, remits the matter back to the Tribunal with directions to afford an opportunity to show cause for excusing the delay, deposit Rs.25,000 as costs, and proceed in accordance with law.

Provisions of Law Cited

Section 41 of the Kerala General Sales Tax Act, 1963

Legal Doctrines & Maxims

Fair opportunity to explain delay (a due process principle)
Apex Court dictum in State of Andhra Pradesh v. Hyderabad Asbestos Cement Production Ltd, (1994) 94 STC 410

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Tribunal erred in rejecting the C-Forms due to delay without properly considering the explanation offered. They point to inconsistent treatment in identical cases and rely on the Apex Court’s dictum in Andhra Pradesh v. Hyderabad Asbestos Cement Production Ltd to argue that belated C-Forms should be examined after giving an opportunity to explain the delay. They cite the Kerala High Court’s own decision in S.T. Rev. 43/2016, where the matter was remanded for disposal in accordance with law, with directions to permit the assessee to file affidavits and verify C-forms, along with an order of costs. They seek remand to Tribunal for disposal consistent with law after proper consideration of delay and verification of C-forms, with appropriate remedy and cost.

Contentions of Respondents

The respondent’s counsel did not dispute the circumstances under which the prior remand order was made and accepted the applicability of the controlling dictum. The focus is on whether the belated C-forms can be admitted after due consideration. The government pleader did not contest the likelihood of applying the Supreme Court’s dictum and supported remittance to the Tribunal to determine the belated C-Forms after affording the assessee an opportunity to explain and produce affidavits, subject to costs.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Andhra Pradesh v. Hyderabad Asbestos Cement Production Ltd	(1994) 94 STC 410	Positive	Cited for the apex court dictum that belated C-Forms require consideration, allowing opportunity to explain delay before adverse action; used to justify remand and remittance for disposal in accordance with law.
S.T. Rev. No. 43/2016	S.T. Rev. No. 43/2016	Positive	Previously remanded by this Court in similar circumstances, guiding the current case toward remand and opportunity to explain delay.
S.T. Rev. No. 41/2016	S.T. Rev. No. 41/2016	Positive	Same view taken by this Court; remitted matter after discussing belated C-Forms in similar facts.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Kochi Refineries Ltd. v. State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942 ST.Rev..No.28 OF 2016 AGAINST THE ORDER/JUDGMENT IN TA 47/2012 DATED 30-11-2015 OF S.T.A.T.ADDITIONAL BENCH,ERNAKULAM ## PETITIONER/S: M/S.KOCHI REFINERIES LTD. AMBALAMUGAL, NOW AMALGAMATED WITH BHARATH PETROLEUM CORPORATION LTD REPRESENTED BY ITS SENIOR FINANCE MANAGER R.S. SREEKUMAR. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA RESPONDENT/S: STATE OF KERALA REPRESENTED BY JOINT COMMISSIONER (LAW) COMMERCAL TAXES,ERNAKULAM. R1 BY GOVERNMENT PLEADER ## OTHER PRESENT: SR GP SHAMSUDEEN V K THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 14.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **S.T.(Rev) No.28/2016** **-2-** ## **O R D E R** Dated this the 14th day of January 2021 ## S.V.Bhatti, J. Heard Adv.Jaikrishna for petitioner and Sr. Government Pleader Shamsudheen for respondent. 2. The instant revisions filed under Section 41 of the Kerala General Sales Tax Act, 1963, concern issues relating to assessment year 2004-05. The petitioner challenges the order dated 30.11.2015 in T.A. No.47/2012 of Kerala Sales Tax Appellate Tribunal, Ernakulam. The petitioner, challenging the order in revision, has formulated the following questions for consideration of this Court. ## **S.T.(Rev) No.28/2016** **-3-** “a) Whether the Tribunal was correct in rejecting the C- Forms submitted by the petitioner before them without properly reckoning the explanation offered by the petitioner for the delay in collecting the C-Forms? b) Whether the Tribunal was correct in taking an inconsistent approach especially when in an identical case of the petitioner, the Tribunal was pleased to accept the C-Forms submitted by them? c) Whether the Tribunal has properly applied the dictum laid down by the Apex Court in State of _Andhra Pradesh v. Hyderabad Asbestos Cement Production Ltd_ reported in (1994) 94 STC 410? d) Whether the Tribunal is right in not granting additional time to collect the left out C-Forms by the petitioner?” The circumstances relevant for disposing of the revision are briefly stated thus: 3. On 28.02.2011 the assessment for the assessment year 2004-05 was completed. The petitioner is aggrieved by the decision of assessing officer in rejecting the C-Forms submitted by the petitioner, firstly without reasons and secondly the **-4-** ## **S.T.(Rev) No.28/2016** reasons stated are too trivial, and, therefore, filed appeal before the Appellate Authority. On 29.03.2012 the first appellate authority partly allowed the appeal but did not grant time to place before the first appellate authority the left out C-Forms which are ready and could be produced by the assessee. The petitioner filed T.A No.47/2012 before the second Appellate Tribunal. The Tribunal, for the reasons noted in the impugned order, rejected the appeal. Hence the revision. 4. The issue relates to the filing of C-Forms with delay and not considering the reasons given by the petitioner for submission of C-Forms with delay before the Tribunal. Advocate for petitioner submits that in similar circumstances this Court, in the revision filed by the very same assessee in S.T. Rev. 43/2016 set aside the order of appellate Tribunal and remitted the matter to Tribunal for disposal in accordance with law and the operative portion of the Order reads thus: **S.T.(Rev) No.28/2016** **-5-** “On the totality of the facts and circumstances, we are of the view that this is an eminently fit case where the assessee should have been given an opportunity by the Tribunal to show cause for excusing the delay in submitting the C-forms. If the Tribunal is satisfied in that matter, it has to decide the appeal on the basis of the C-forms as well. To pave way for this, the impugned decision of the Tribunal is set aside and the case is remitted to the Tribunal for considering the aforesaid aspect after affording the petitioner/assessee an opportunity to file affidavit and seek appropriate remedy in relation to the belated production of the C-forms. Needless to say, the originals of the C-forms will be made available to the Tribunal for verification with the copies which are produced. All this will be on condition that the revision petitioner pays the State an amount of `25,000/- (Rupees twenty five thousand only) as costs payable through the assessing officer of the petitioner, within a period of two weeks. Evidence of payment shall be placed before the Tribunal for further proceedings. Parties are directed to mark appearance before the Tribunal on 22.12.2016. This S.T.Revision is ordered accordingly.” 5. The Sr. Government Pleader does not dispute the circumstances under which the said order was made by this **S.T.(Rev) No.28/2016** **-6-** Court and the applicability of the said dictum to the case on hand. It is to be noted that in S.T. Rev. No.41/2016 this Court vide order dated 27.03.2017 has taken the same view and remitted the matter to appellate Tribunal for disposal after receiving additional affidavit etc. 6. After perusing both the orders we are satisfied that the circumstances present in the case are similar to the circumstances dealt with by this Court in the decisions referred to above, therefore, the view finally taken could be extended to the case on hand. Accordingly in terms of the order dated 25.11.2016 the order under appeal is set aside, subject to the petitioner pays/deposits with the Department Rs.25,000/(Rupees Twenty five thousand only) as costs payable through the assessing officer of the petitioner within four weeks from today. Evidence of payment shall be placed before the Tribunal for taking up further proceedings. Parties are directed to mark ## **S.T.(Rev) No.28/2016** **-7-** appearance before the Tribunal on 23.02.2021. The S.T. Revision is ordered accordingly. Sd/S.V.BHATTI JUDGE Sd/BECHU KURIAN THOMAS JUDGE jjj **-8-** ## **S.T.(Rev) No.28/2016** ## APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE II, COMMERCIAL TAXES, ERNAKULAM - ANNEXURE B TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE II, COMMERCIAL TAXES, ERNAKULAM - ANNEXURE C TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE II, COMMERCIAL TAXES, ERNAKULAM - ANNEXURE D TRUE COPY OF THE ORDER OF DEPUTY COMMISSIONER (APPEALS), ERNAKULAM IN STA 369/2011 - ANNEXURE E TRUE COPY OF THE WRITTEN SUBMISSION FILED BY THE PETITIONER BEFORE THE SALES TAX APPELLATE TRIBUNAL - ANNEXURE F TRUE COPY OF THE ORDER OF THE TRIBUNAL IN TA 47/2012 - ANNEXURE G TRUE COPY OF THE ORDER OF THE TRIBUNAL IN TA NO. 251/2010 ANNEXURE H TRUE COPY OF THE ORDER OF THE TRIBUNAL IN R.P.7/2012