High Court of KeralaDivision BenchRevisions rejected; Tribunal orders set aside; ...

State of Kerala by Deputy Commissioner (Law), Kerala GST Department, Ernakulam v. P.V.S. Hospital (P) Ltd.

Case / Petition Number:OT.Rev.No.60/2020; OT.Rev.No.75/2020; OT.Rev.No.76/2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
  • T. R. Ravi
Judgment Date
2020-06-24
Court Decision / Holding
The revisions are rejected with the reservation that if the Supreme Court reverses the Full Bench judgment, the assessee would also be subject to that reversal, and the State would be entitled to demand on the basis of assessment orders now set aside as modified by the first appellate authority, if any such modification is made. The Tribunal’s orders are set aside, the questions are answered in favor of the assessee and against the revenue, and costs are to be borne by the parties.
Final Disposition
Revisions rejected; Tribunal orders set aside; decision in favor of the assessee and against the revenue; costs to be borne by the parties; reservation about possible Supreme Court reversal.

Parties to the Case

Appellants / Petitioners

  • State of Kerala represented by Deputy Commissioner (Law), Kerala GST Department, Ernakulam

Respondents

  • P.V.S. Hospital (P) Ltd. Railway Station Road, Calicut

Legal Representation & Advocates

Counsels for Respondents

  • • Senior Government Pleader Mohammed Rafiq
  • • Sri Millu Dendapani

Case Synopsis & Summary

The High Court of Kerala heard three tax revision petitions (OT.Rev.No.60/2020, 75/2020 and 76/2020) challenging the VAT treatment of oxygen and nitrous oxide purchased and sold by P.V.S. Hospital, Calicut. The revisions arise from assessments under the KVAT Act in respect of three financial years; the hospital supplied oxygen and nitrous oxide for medical emergencies and prescribed therapeutic use, whereas the revenue sought taxation. The core issue is whether such purchases and sales are exigible to tax. The matter is guided by a binding Full Bench decision in San Jose Parish Hospital (M/s.) v. Commercial Tax Officer and Others (2019 (1) KHC 377 (FB)), which the court notes addresses the same question. The State contended that a Special Leave Petition is pending in the Supreme Court and thus the matter should be kept in abeyance; there was no stay granted. The court, however, is persuaded by the Full Bench ruling and reverses the Tribunal Orders, answering the questions in favor of the assessee and against the revenue. The court also clarifies that if the Supreme Court reverses the Full Bench judgment, the State would be entitled to rely on the modified assessment orders, if any, and the demand may be revisited. The order concludes by ordering the revisions rejected and costs cast on the parties. The matter is resolved on 24 June 2020.

Provisions of Law Cited

Section 25(1) of KVAT Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends the transactions related to oxygen and nitrous oxide are exigible to tax under the KVAT Act. It notes that three separate year assessments were involved and that the matter is still subject to consideration by the Supreme Court via a Special Leave Petition, though no stay has been granted. It urges that the revisions should not be kept in abeyance pending the Supreme Court outcome and that the Tribunal’s orders ought to be set aside in accordance with the controlling law and the earlier Full Bench ruling.

Contentions of Respondents

The hospital (assessee) argues that purchases were for medical emergencies and the sale was on prescription for therapeutic purposes, which should exempt or render non-taxable the transactions under KVAT. It points to the Full Bench decision urged to bind the present issue and maintains that the tribunal finding should be set aside in the hospital’s favor, asserting no tax liability on the challenged transactions.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sanjose Parish Hospital (M/s.) and Others v. Commercial Tax Officer and Others2019 (1) KHC 377 (FB)PositiveThe Full Bench judgment on the taxability of oxygen/nitrous oxide purchases for medical emergencies is cited as governing authority and is applied to resolve the present revisions in favor of the assessee (hospital).

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **OT.Rev.No.60 OF 2020** **AGAINST THE ORDER/JUDGMENT IN TAVAT 1402/2018 DATED 19-082019 OF AGRL.I.T.ADDITIONAL BENCH,KOZHIKODE** ## **REVISION PETITIONER:** **STATE OF KERALA BY DEPUTY COMMISSIONER(LAW), KERALA GST DEPARTMENT, ERNAKULAM** **BY GOVERNMENT PLEADER** ## **RESPONDENT:** **P.V.S. HOSPITAL (P) LTD. RAILWAY STATION ROAD, CALICUT.** ## **OTHER PRESENT:** **SENIOR GOVT.PLEADER SRI.MOHAMMED RAFIQ SRI MILLU DENDAPANI** **THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 24.06.2020, ALONG WITH OT.Rev.75/2020, OT.Rev.76/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.T. Rev.No.60/2020 and con.cases ::2:: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **OT.Rev.No.75 OF 2020** **AGAINST THE ORDER/JUDGMENT IN TAVAT 1404/2018 OF DY.COMMISSIONERKERALA AGRL.IT &STAT,KZD.** ## **REVISION PETITIONER:** **STATE OF KERALA BY DEPUTY COMMISSIONER (LAW), KERALA GST DEPARTMENT, ERNAKULAM** **BY GOVERNMENT PLEADER** **RESPONDENT:** **P.V.S. HOSPITAL (P) LTD. RAILWAY STATION ROAD, CALICUT 673002** **OTHER PRESENT:** **SENIOR GOVT.PLEADER SRI.MOHAMMED RAFIQ SRI MILLU DENDAPANI** **THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 24.06.2020, ALONG WITH OT.Rev.60/2020, OT.Rev.76/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.T. Rev.No.60/2020 and con.cases ::3:: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **OT.Rev.No.76 OF 2020** **AGAINST THE ORDER/JUDGMENT IN TAVAT 1405/2018 OF AGRL.I.T.ADDITIONAL BENCH,KOZHIKODE** ## **REVISION PETITIONER:** **STATE OF KERALA REPRESENTED BY THE DEPUTY COMMISSIONER(LAW), KERALA GST DEPARTMENT, ERNAKULAM.** **BY GOVERNMENT PLEADER** **RESPONDENT:** **P.V.S.HOSPITAL (P) LTD. RAILWAY STATION ROAD, CALICUT-673002.** **OTHER PRESENT:** **SENIOR GOVT.PLEADER SRI.MOHAMMED RAFIQ SRI MILLU DENDAPANI** **THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 24.06.2020, ALONG WITH OT.Rev.60/2020, OT.Rev.75/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.T. Rev.No.60/2020 and con.cases ::4:: ## **O R D E R** **[O.T. Rev.Nos. 60/2020, 75/2020 and 76/2020] (Dated this the 24[th] day of June, 2020) K.Vinod Chandran, J** **The revisions raise the very same issue of exigiblity to tax of the purchase and sale of Oxygen and Nitrous Oxide by the assessee, a hospital. Admittedly the purchase was for the purpose of medical emergencies and the sale was also on prescription of the medical practitioner to the patients for therapeutic purposes. The issue stands covered by a judgment of the Full Bench of this Court reported in** _**Sanjose Parish Hospital (M/s.) and Others v. Commercial Tax Officer and Others [2019 (1) KHC 377 (FB)]**_ **.** **2. The contention of the learned Senior Government Pleader is that there is a Special Leave Petition filed before the Hon'ble Supreme Court in which, however, no stay has been granted admittedly. In the above circumstances, we do not think that the revisions need be kept pending and we follow the decision of the Full Bench to set aside the orders** O.T. Rev.No.60/2020 and con.cases **==> picture [20 x 9] intentionally omitted <==** **passed by the Tribunal and answering the questions in favour of the assessee and against the revenue.** **3. In the matter of assessments for three separate years, raised in O.T.Rev.Nos.60, 75 and 76 of 2020 respectively from T.A.(VAT) Nos.1402, 1404 and 1405 of 2018 of the Appellate Tribunal Additional Bench Kozhikode; the revisions are rejected with the reservation that if the Hon'ble Supreme Court reverses the aforesaid Full Bench judgment, then necessarily the assessee would also be subject to that and the State would be entitled to make demand on the basis of the assessment orders now set aside as modified by the first appellate authority, if any such modification is made.** **Ordered accordingly. Parties are left to** **suffer their respective costs.** **Sd/K.VINOD CHANDRAN, Judge** **Sd/T.R RAVI, Judge** **jma** O.T. Rev.No.60/2020 and con.cases ::6:: ## **APPENDIX OF OT.Rev 60/2020** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **A TRUE COPY OF ASSESSMENT ORDER UNDER SECTION 25(1) OF KVAT ACT DATED 30.12.2017 BEARING NO.32110832114/201112 PASSED BY THE STATE TAX OFFICER, THIRD CIRCLE, COMMERCIAL TAXES, CALICUT** **ANNEXURE B A TRUE COPY OF THE COMMON ORDER DATED 31.05.2018 OF KVATA NO.162/2018** **ANNEXURE C CERTIFIED COPY OF THE COMMON ORDER OF THE TRIBUNAL IN TA.(VAT) NO.1402/2018 DATED 19.08.2019** O.T. Rev.No.60/2020 and con.cases ::7:: ## **APPENDIX OF OT.Rev 75/2020** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **A TRUE COPY OF ASSESSMENT ORDER UNDER SECTION 25(1) OF KVAT ACT DATED 03/01/2018 BEARING NO.32110832114/201314 PASSED BY THE STATE TAX OFFICER, THIRD CIRCLE, COMMERCIAL TAXES, KOZHIKODE.** **ANNEXURE B A TRUE COPY OF THE COMMON ORDER DATED 31/05/2018 IN KVATA NO.164 OF 2018.** **ANNEXURE C CERTIFIED COPY OF THE COMMON ORDER OF THE TRIBUNAL IN T.A.(VAT) NO.1404 OF 2018 DATED 19/08/2019.** O.T. Rev.No.60/2020 and con.cases ::8:: ## **APPENDIX OF OT.Rev 76/2020** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE A** **A TRUE COPY OF THE ASSESSMENT ORDER UNDER SECTION 25(1) OF KVAT ACT DATED 03.01.2018 BEARING NO. 32110832114/2014-15 PASSED BY THE STATE TAX OFFICER, THIRD CIRCLE, COMMERCIAL TAXES, KOZHIKODE.** **ANNEXURE B A TRUE COPY OF THE COMMON ORDER DATED 31.05.2018 IN KVATA NO. 15/2018** **ANNEXURE C** **TRUE COPY OF THE COMMON ORDER OF THE TRIBUNAL IN TA(VAT) NO. 1405/2018 DATED 19.08.2019.**