M/S Kalyan Tourist Home, G B Road, Palakkad v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940** **RP.No. 272 of 2018** **----------------AGAINST THE ORDER IN ST.REV. NO. 36 OF 2014 DATED 23.01.2017 --------------** **REVIEW PETITIONER/REVISION PETITIONER/APPELLANT/APPELLANT/ ASSESSEE ---------------------------------------------------------------------** **M/S KALYAN TOURIST HOME G B ROAD, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER AJAIKUMAR P.,** **BY ADVS.SRI.THOMAS ABRAHAM** **DR.K.P.PRADEEP** **RESPONDENT/RESPONDENT/: ------------------------** **STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **BY SPL.GOVERNMENT PLEADER SRI. C.K.GOVINDAN, (TAX) BY** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 13-04-2018, ALONG WITH RP.NO. 273 OF 2018 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/02.05.18** ## **RP.No. 272 of 2018** **--------------------** ## **APPENDIX** **----------** ## **PETITIONERS ANNEXURES** **------------------------** **ANNEXURE A TRUE COPY OF THE RODE DATED 23.01.2017 IN ST REV NO 36 OF 2014** ## **RESPONDENTS ANNEXURES** ## **NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** **02.05.18** **P.R.RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ. ----------------------------------------------------------------R.P.Nos.272, 273, 274 & 296 of 2018 ----------------------------------------------------------------Dated this the 13[th] day of April, 2018** ## **ORDER** ## Ramachandra Menon, J. These review petitions have been filed by the assessee who was the revision petitioner in S.T.Revn.Petition Nos.36, 35, 34 & 33 of 2014, which were dealt with by this Court resulting in dismissal of the said petitions. 2. Heard Sri.Thomas Abraham, the learned counsel for the petitioner and Sri.C.K.Govindan, the learned Special Government Pleader (Taxes) with regard to the points raised in review. 3. The petitioner assessee (under the Kerala General Sales Tax Act, 1963) was running a Bar hotel who opted to satisfy tax in terms of Section 7 and necessary proceedings were filed in this regard for the different assessment years. It is stated that, no order as envisaged under Rule 30 of the Kerala General Sales Tax Rules was passed by the Authority; under which circumstance, the tax at the compounded rate R.P.Nos.272, 273, 274 & 296 of 2018 **==> picture [21 x 9] intentionally omitted <==** was being worked out and satisfied, based on the norms under the relevant provisions of law. Later, a notice was issued by the competent authority to the effect that the tax satisfied by the petitioner was not adequate enough under the relevant provisions of law and it was accordingly, that further tax was sought to be satisfied with regard to the differential turn over. On receipt of the notice, a reply was submitted and after considering the same, Annexure-A order was passed by the assessing authority, requiring to satisfy the balance tax with interest. This was sought to be challenged by the petitioner by way of statutory appeal before the appellate authority, also placing reliance on the verdict passed in **Hotel Zodiac Uzhavoor v. State of Kerala [(2010) 18 KTR pg.2220]** . 4. It is seen from the proceedings that the contention raised by the review petitioner in the appeal was partly accepted and allowed and the 'interest' portion was deleted; however sustaining the other instances as per Annexure-B. Still being dissatisfied, the review petitioner approached the Tribunal by filing a revision petition, raising a totally different ground to R.P.Nos.272, 273, 274 & 296 of 2018 **==> picture [21 x 9] intentionally omitted <==** the effect that non-passing of any order under Rule 30 of the Kerala General Sales Tax Rules had prejudiced the petitioner in several ways. It was also contended that, if the proposal was to have the tax imposed at the higher rate as stipulated under Section 7(1)(b) of the Act, the petitioner would not have opted for compounding. In other words, the petitioner sought to contend that the assessee was willing to satisfy tax only in terms of Section 7(1)(a) of the Act. But by virtue of the clear provision under Section 7, to have the tax worked out both under Sections 7(1)(a) and 7(1)(b) and to satisfy the higher extent, the Tribunal found that there was absolutely no basis for the above contention. This is more so, by virtue of the law declared by the Supreme Court to the effect that, once the party-assessee opted for compounding, he cannot turn back and it was accordingly, that the revision petitions filed by the assessee were dismissed as per Annexure-C order dated 28.10.2014. 5. Met with the situation, the petitioner approached this Court by filing S.T.Revn.Petition Nos.36, 35, 34 & 33 of 2014 in R.P.Nos.272, 273, 274 & 296 of 2018 **==> picture [21 x 8] intentionally omitted <==** respect of the different years. The matters were dealt with in detail and as per verdict dated 23.1.2017, a Division Bench of this Court [to which, one of us - Justice Devan Ramachandran - was a member] observed that there was absolutely no merit or bonafides and accordingly, interference was declined and the revision petitions were dismissed. Though the matter was taken up before the Supreme Court, the effort turned to be futile and the proceedings were dismissed; with regard to which there is no dispute. It is at this point of time, that the petitioner has turned up before this Court again by filing the present review petitions, pointing out that the contention in the reply given to the notice issued by the assessing authority, that if for any reason the compounding opted by the petitioner was not acceptable a regular assessment might be made, was omitted to be considered. Hence, the review petitions. 6. The petitioner has virtually conceded in the review petitions that such a claim for regular assessment was never made either before the Tribunal or before this Court in the earlier round of litigation. The reason stated is that, copy of R.P.Nos.272, 273, 274 & 296 of 2018 **==> picture [21 x 8] intentionally omitted <==** the reply submitted to the notice was not available and hence no such plea could be raised. The scope of such plea for regular assessment, as an alternative course, when the party loses the battle has already been considered by this Court and answered the same, which virtually stands against the petitioner. However, that need not be a matter for adjudication of the issue involved in these cases, as the petitioner concedes that no such plea, as now raised before this Court, was ever raised before this Court. The scope of review is very limited, which is only to rectify the error, if any, apparent on the face of the record. It is never to be a substitute for appeal, in view of the law declared by the Supreme Court as per decision reported in **Meera Bhanja v. Nirmala Kumari [AIR 1995 (SC) 455]** . The position had been clarified by the Supreme Court much earlier, as well in **Thungabhadra Industries Ltd. v. The Govt. of Andhra Pradesh [AIR 1964 (SC) 1372]** . It has been held by the Apex Court as per decision reported in **Parsion Devi & Ors. v. Sumitri Devi & Ors. [(1997) 8 SCC 715]** that, it is not for 're-hearing'. R.P.Nos.272, 273, 274 & 296 of 2018 **==> picture [21 x 9] intentionally omitted <==** In the above circumstances, we find that the petitioner has failed to establish any tenable cause of action for interference. Review petitions fail. They are dismissed accordingly. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **DEVAN RAMACHANDRAN, JUDGE** skj