O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021 — Annamma Kuruvila and Kolabhagathu Agencies v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR.JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023/5TH ASWINA, 1945** **O.T.REV.NO.91 OF 2021** **AGAINST THE ORDER OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, THIRUVANANTHAPURAM IN R.P.NO.8/20 IN TA (VAT).NO.198/2019 DATED 08.03.2021** ## **REVISION PETITIONER/PETITIONER:** **ANNAMMA KURUVILA AGED 55 YEARS PROPRITRIX, TISHA AGENCIES, VENNALA P.O., THIRUVALLA,PATHANAMTHITTA - 689 101** **BY ADV.SRI.TOMSON T.EMMANUEL BY ADV.SRI.BEJOY CHERIYAN** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001** **BY SRI.V.K.SHAMSUDHEEN, SR. GOVERNMENT PLEADER** **THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 27.09.2023 ALONG WITH O.T.REV.NO.97 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 2 ::** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE DR.JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023/5TH ASWINA, 1945** ## **O.T.REV.NO.97 OF 2021** **AGAINST THE ORDER OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, THIRUVANANTHAPURAM IN R.P.NO.7/20 IN TA (VAT).NO.197/2019 DATED 08.03.2021** ## **REVISION PETITIONER/PETITIONER:** **KOLABHAGATHU AGENCIES,** **NO.3, MUNICIPAL SHOPPING COMPLEX, MARKET JUNCTION, THIRUVALLA, PATHANAMTHITTA-689 101.** **BY ADV.SRI.TOMSON T.EMMANUEL BY ADV.SRI.BEJOY CHERIYAN** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA,** **REPRESENTED BY SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **BY SRI.V.K.SHAMSUDHEEN, SR. GOVERNMENT PLEADER** **THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 27.09.2023 ALONG WITH O.T.REV.NO.91 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 3 ::** ## **O R D E R** ## **Dr. A.K. Jayasankaran Nambiar, J.** As both these O.T. Revisions involve a common issue, they are taken up together for consideration and disposed by this common order. The brief facts necessary for disposal of these O.T. Revisions are as follows: 2. The petitioners had, during the pendency of Second Appeals preferred by them against the assessment orders under the Kerala Value Added Tax Act [hereinafter referred to as the “KVAT Act”], opted for availing the benefit of the Amnesty Scheme that was in vogue, and towards that end, sought withdrawal of their Appeals before the Tribunal. Acceding to their request, the Appellate Tribunal dismissed the Appeals as withdrawn. Before formally applying for the Amnesty Scheme however, the petitioners came across the judgments of this Court that, according to them, resolves the issue, that was the subject matter of the Appeals before the Tribunal, in their favour. They therefore chose not to **O.T.Rev.No.91/2021 & :: 4 :: O.T.Rev.No.97/2021** avail the benefit of the Amnesty Scheme and filed Restoration Applications before the Tribunal. The Appellate Tribunal, vide the orders impugned in the O.T. Revisions, dismissed the Restoration Applications on the ground that as per the Kerala Value Added Tax Appellate Tribunal Regulations, an Appeal that was dismissed as withdrawn could not be restored to the files of the Appellate Tribunal. 3. The petitioners have approached us through these O.T. Revisions impugning the said orders of the Appellate Tribunal, wherein, _inter alia,_ Questions of law relating to the merits of the Appeals have also been raised. 4. We have heard Sri.Tomson T. Emmanuel, the learned counsel for the petitioners in both the O.T. Revisions as also Sri.V.K.Shamsudheen, the learned senior Government Pleader for the respondent/State. 5. On a consideration of the rival submissions, we feel that the larger issue as to whether the petitioners are entitled to succeed on the merits of the issues raised in the Second Appeals before the Appellate Tribunal will have to be decided by that **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 5 ::** Forum to which we deem it appropriate to remand these matters after directing restoration of the said Appeals. Before that however, we must deal with the objections of Sri.V.K.Shamsudheen, the learned senior Government Pleader as regards our jurisdiction to do so in a Revision filed in terms of the KVAT Act. Although the Appellate Tribunal might have been justified in taking the view that, as per the Kerala Value Added Tax Appellate Tribunal Regulations, an Appeal that was dismissed as withdrawn, and not for default, cannot be restored in terms of the above Regulations, we fail to see why the Appellate Tribunal could not have considered the applications preferred by the petitioners as Review Petitions on the peculiar facts and circumstances of the case. At any rate, we are of the view that we would be justified in setting aside the impugned orders of the Appellate Tribunal and restoring the Appeals of the petitioners before the Tribunal so that the Tribunal can consider the Appeals on merits, after taking note of the contentions of the petitioners that the issue involved in the Appeals is already covered in their favour by judgments of this Court. 6. In taking the view as above, we place reliance on the observations of the Supreme Court in **M.M. Thomas v. State of** **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 6 ::** **Kerala and Another – [(2000) 1 SCC 666]** , wherein, reference was made to the following passage from _Halsburj's Laws of England_ (4[th] Edn., Vol. 10, paga 713), which states thus: “The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action.” Thereafter, the Court observed that the plenary powers of the High Court would ensure that unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction. We are therefore well within our jurisdiction to direct a restoration of the petitioners' Appeals before the Appellate Tribunal, and to issue further directions to the Appellate Tribunal to consider the Appeals on merits. The Appellate Tribunal shall treat the petitioners' Appeals as restored and proceed to dispose the Appeals on merits, after hearing the petitioners, in particular with reference to their contention that the issue involved in the Appeals is covered by **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 7 ::** judgments of this Court, within an outer time limit of three months from the date of receipt of a copy of this order. The O.T. Revisions are disposed as above. **Sd/-** **DR. A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/DR. KAUSER EDAPPAGATH JUDGE** **prp/** **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 8 ::** ## **APPENDIX OF O.T.REV.NO.91/2021** ## **PETITIONER'S ANNEXURES:** **Annexure I COPY OF ANNUAL RETURN DATED 06/10/2012 SUBMITTED FOR 2011-12, CLAIMING INPUT TAX RS. 83,91,644/- WITH PROOF OF PAYMENT OF OUTPUT TAX RS. 84, 70, 889/-** **Annexure II COPY OF AUDIT REPORT DATED 29/11/2012 SUBMITTED IN FORM NO.13 AND 13A ALONG WITH AUDITED FINANCIAL STATEMENTS FOR 2011-12** **Annexure II(a) COPY F DECLARATIONS SUBMITTED BEFORE ASSESSING AUTHORITY TO PROVE RECEIPT OF DISCOUNT, NOT HAVING ANY ELEMENT OF TAX.** **Annexure III COPY OF ORDER DATED 16/03/2017 COMPLETED BY ASSESSING AUTHORITY FOR 2011-12, U/S.25(1) OF THE KVAT ACT.** **Annexure IV COPY OF IST APPELLATE ORDER DATED 28/07/2018 PASSED BY ASSISTANT COMMISSIONER (APPEALS), PATHANAMTHITTA IN APPEAL FILED AGAINST ANNIII ASSESSMENT ORDER** **Annexure V COPY OF 2ND APPEAL MEMORANDUM DATED 04/06/2019 SUBMITTED AGAINST ANN-IV IST APPELLATE ORDER BEFORE THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM.** **Annexure VI COPY OF PROOF OF PAYMENT OF DISPUTED TAX AND INTEREST U/S. 55(4) OF THE KVAT ACT BEFORE ASSESSING AUTHORITY, AGAINST ANN-III ORDER.** **Annexure VII COPY OF ORDER DATED 28/09/2020 PASSED BY THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM, IN DISMISSING THE APPEAL, AS WITHDRAWN. Annexure VIII COPY OF RESTORATION PETITION DATED 24/12/2020 SUBMITTED BY APPLICANT BEFORE THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH,** **O.T.Rev.No.91/2021 & O.T.Rev.No.97/2021** **:: 9 ::** ## **THIRUVANANTHAPURAM.** ## **Annexure IX** ## **Annexure X** ## **Annexure XI** **ORDER DATED 08/03/2021 PASSED BY THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM, IN REJECTING ANN-VIII RESTORATION PETITION** **COPY OF REFERENCE ORDER DATED 24/07/2020 PASSED BY DIVISION BENCH OF THIS HON'BLE COURT IN WP(C) NO. 5467/2017** **COPY OF INTERIM ORDER DATED 31/10/2019 IN OT REV. NO. 124 OF 2019 PASSED BY THIS HON'BLE COURT, PERTAINING TO ASSESSMENT COMPLETED ON SIMILAR SET OF FACT, FOR PREVIOUS YEAR OF APPLICANT.** **RESPONDENTS ANNEXURES: NIL.** **O.T.Rev.No.91/2021 &** **O.T.Rev.No.97/2021** **:: 10 ::** ## **APPENDIX OF O.T.REV 97/2021** ## **PETITIONER'S ANNEXURES:** ## **Annexure I** **COPY OF ANNUAL RETURN DATED 02.05.2013 SUBMITTED FOR 2012-13 CLAIMING INPUT TAX RS.1,71,77,821/- WITH PROOF OF PAYMENT OF OUTPUT TAX RS.1,76,07,220/-** **Annexure II** **COPY OF AUDIT REPORT DATED 17.12.2013 SUBMITTED IN FORM NO.13 AND 13 A ALONG WITH AUDITED FINANCIAL STATEMENT FOR 2012-13.** - **Annexure IIA COPY OF DECLARATIONS SUBMITTED BEFORE ASSESSING AUTHORITY TO PROVE RECEIPT OF DISCOUNT, NOT HAVING ANY ELEMENT OF TAX.** - **Annexure III COPY OF ORDER DATED 17.08.2017 COMPLETED BY ASSESSING AUTHORITY FOR 2012-13, UNDER SECTION 25(1) OF THE KAVAT ACT.** - **Annexure IV COPY OF 1ST APPELLATE ORDER DATED 31.07.2018 PASSED BY ASSISTANT COMMISSIONER 9APPEALS), PATHANAMTHITTA IN APPEAL FILED AGAINST ANNIII ASSESSMENT ORDER.** **Annexure V** - **COPY OF 2ND APPEAL MEMORANDUM DATED 04.06.2019 SUBMITTED AGAINST ANN-IV 1ST APPELLATE ORDER BEFORE THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM.** **Annexure VI** - **COPY OF PROOF OF PAYMENT OF DISPUTED TAX UNDER SECTION 55(4) OF THE KAVAT ACT BEFORE ASSESSING AUTHORITY, AGAINST ANN III ORDER.** **Annexure VII** - **COPY OF ORDER DATED 28.09.2020 PASSED BY THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM, IN DISMISSING THE APPEAL AS WITHDRAWN.** - **Annexure VIII COPY OF RESTORATION PETITION DATED 24.12.2020 SUBMITTED BY APPLICANT BEFORE THE** **O.T.Rev.No.91/2021 &** **:: 11 ::** **O.T.Rev.No.97/2021** **HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM.** ## **Annexure IX** **ORDER DATED 08.03.2021 PASSED BY THE HON'BLE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM, IN REJECTING ANN VIII RESTORATION PETITION.** ## **Annexure X** **COPY OF JUDGMENT DATED 24.07.2020 PASSED BY DIVISION BENCH OF THIS HON'BLE COURT IN WPC NO.5467 OF 2017.** ## **Annexure XI** **COPY OF INTERIM ORDER DATED 25.11.2019 IN OT REV. NO.132 OF 2019 PASSED BY THIS HON'BLE COURT, PERTAINING TO ASSESSMENT COMPLETED ON SIMILAR SET OF FACT FOR PREVIOUS YEAR OF APPLICANT.** ## **RESPONDENTS ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE**