M/S RUBCO HUAT WOODS (P) LTD. v. State of Kerala (O.T. Revision Nos. 145-166 of 2017)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939 OT.Rev.No. 145 of 2017 () -------------------------- AGAINST THE ORDER IN TA(VAT) NO. 42/2015 of KERALA VALUE ADDED TAX/AGRL. INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDL.BENCH, KOZHIKODE DATED 30.01.2016 ## REVISION PETITIONER(S)/APPELLANT/APPELLANT/ASSESSEE: --------------------------------------------------------------------- M/S RUBCO HUAT WOODS (P) LTD., ERANHOLI,THALASSERY, REPRESENTED BY ITS GENERAL MANAGER, SURESH BABU M. BY ADVS.SRI.K.P.ABDUL AZEES SMT.SHOBA ANNAMMA EAPEN SMT.T.ARCHANA RESPONDENT(S)RESPONDENT/RESPONDENT/REVENUE: ------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY DEPUTY COMMISSIOENR(LAW), COMMERCIALT AXES, ERNAKULAM 682 015. R BY SRI. MUHAMMED RAFIQ, SR. GOVERNMENT PLEADER THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 18-08-2017, ALONG WITH OT. REV. NO. 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165 & 166 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OT.Rev.No. 145 of 2017 () ## : 2 : ## **APPENDIX** ## PETITIONER'S ANNEXURES: ANNEXURE A : TRUE COPY OF ASSESSMENT ORDER NO. 32120951692/2011-12 DATED 29.06.2012 BY COMMERCIAL TAX OFFICER, 2ND CIRCLE, THALASSERY FOR THE MONTH OF NOVEMBER, 2011. ANNEXURE B : TRUE COPY OF RETURN AND CHALAN FOR THE MONTH OF NOVEMBER, 2011. ANNEXURE C : TRUE COPY OF APPELLATE ORDER BY DEPUTY COMMISSIONER (APPEALS) IN ORDER NO.KVATA 45/13 DATED 20.12.2014. ANNEXURE D : TRUE COPY OF MODIFIED ORDER FOR NOVEMBER, 2011 VIDE NO.32120951692/2011-12 DATED 31.07.2015 PASSED BY ASSISTANT COMMISSIONER III, SPECIAL CIRCLE, KANNUR. ANNEXURE E : TRUE COPY OF ORDER OF THE HONOURABLE TRIBUNAL IN T.A.(VAT) NO. 42/2015. ANNEXURE F : TRUE COPY OF ORDER OF THE HONOURABLE TRIBUNAL IN RECTIFICATION PETITION NO. 01/2017. ## RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE. rv ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------- O.T. Revision Nos. 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165 & 166 of 2017 ( ) ------------------------------------------ Dated this the 18[th] day of August, 2017. **==> picture [76 x 12] intentionally omitted <==** ## Antony Dominic,J. These revision petitions are filed by the assessee challenging the common order passed by the Kerala Value Added Tax/Agricultural Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Kozhikode in TA(VAT) Nos. 43/2015, 50/2015, 78/2015, 79/2015, 442015, 46/2015, 51/2015 and 64/2015 concerning the period from November, 2011 to March, 2012 and from June, 2012 to October, 2013. During the aforesaid period, on the ground that the returns were not filed by the assessee, assessments were completed under Section 22(3) of the KVAT Act and penalty was levied under Section 67(1)(c) of the Act by issuing composite orders. Against these orders, appeals were filed before the first appellate authority. The first appellate O.T. Rev. No.145/2017 & batch -2- authority passed orders directing that the appellant be given the benefit of Section 22(5) of the KVAT Act. It was also ordered that if there is any escaped turn over, the assessing authority can complete the assessment under Section 25(1) of the Act. Aggrieved by these orders, the assessee filed further appeals before the Tribunal. By the common impugned order dated 30.01.2016, the Tribunal set aside the order of the first appellate authority and restored the order passed by the Assessing Officer. Contending that in the absence of any appeal or cross objection having been filed by the Revenue, the Tribunal could not have passed orders resulting in enhancement of the liability of the assessee, rectification applications were filed before the Tribunal. On the rectification applications, two members of the Tribunal passed orders dismissing the same, while one member took a contrary view in his dissenting order. It is in these circumstances, these revisions are filed before this Court. 2. The learned counsel appearing for the assessee reiterating the contentions relied on the decision of the Apex Court in State O.T. Rev. No.145/2017 & batch -3- of Kerala v. Vijaya Stores[1] . These contentions were refuted by the learned Government Pleader, who justified the orders passed by the Tribunal and the majority orders passed on the rectification application. 3. We have considered the submission made. We find that under the assessment orders that were passed, the total liability of the assessee towards the tax and penalty worked out to more than `10 crores. According to the learned counsel, if the assessee had complied with the first appellate authority's orders, its liability would have been less than `1,00,00,000/-. It was in the appeals filed against these orders that the Tribunal has restored the order passed by the assessing officer, as a result of which the liability of more than `10 crores is again fastened on the assessee. The question is whether such an order could have been passed by the Tribunal in the appeals filed by the assessee and particularly in the absence of appeal or cross objection by the Revenue. Although this issue was 1 42 STC 418 O.T. Rev. No.145/2017 & batch -4- not raised in the appellate order, this was pointedly raised in the rectification applications as is seen from the orders passed by the Tribunal itself. However, having gone through these orders, we are not satisfied that in a case of this magnitude, the issues were properly framed or considered. Therefore, we are of the view that the matters require to be considered afresh with due application of mind and in the light of the decision referred to above. 4. In that view of the matter, we set aside the common order passed by the Tribunal in the appeals filed by the assessee as also in the rectification applications filed by it. 5. At this stage, we may also take note of the request made by the learned counsel for the assessee to permit them to withdraw the appeals filed before the Tribunal. Having regard to the fact that this Court has set aside the orders impugned before it and that the appeals and the proceedings are now restored to the files of the Tribunal for re-consideration, we feel that the request should be made before the Tribunal itself. O.T. Rev. No.145/2017 & batch -5- Accordingly, these revisions are disposed of, leaving it open to the Tribunal to pass fresh orders in the matter in accordance with law. ANTONY DOMINIC, JUDGE DAMA SESHADRI NAIDU, JUDGE Rv O.T. Rev. No.145/2017 & batch -6-