# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE T.R.RAVI**
**TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942**
**OT.Rev.No.40 OF 2015**
**AGAINST THE ORDER IN TAVAT 71/2014 DATED 10-02-2014 OF S.T.A.TRIBUNAL,ADDITIONAL BENCH,KZD.**
## **REVISION PETITIONER/S:**
**M/S.WIPRO LTD, 1/72,TEMPLE ROAD, WEST HILL, KOZHIKODE.**
**BY ADVS. SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.BINU MATHEW SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC SRI.TOM THOMAS (KAKKUZHIYIL)**
## **RESPONDENT/S:**
**STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), TRIVANDRUM - 695 001.**
**R1 BY SENIOR GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN**
**THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 1512-2020, ALONG WITH OT.Rev.180/2017, THE COURT ON 15-12-2020 PASSED THE FOLLOWING:**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE T.R.RAVI**
**TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942**
**OT.Rev.No.180 OF 2017**
**AGAINST THE ORDER IN TAVAT 299/2016 DATED 31.01.2017 OF VALUE ADDED TAX APPELLATE TRIBUNAL,ADDITIONAL BENCH,PKD**
## **REVISION PETITIONER/S:**
**M/S. WIPRO ENTERPRISES (P) LIMITED, FORMERLY KNOWN AS WIPRO LIMITED, CHEROOTY ROAD, KOZHIKODE.**
**BY ADVS.**
**SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.HARAN THOMAS GEORGE SRI.ISAAC THOMAS SRI.CHANDAPILLAI ABRAHAM**
## **RESPONDENT/S:**
**STATE OF KERALA REPRESENTED BY THE SECRETARY (TAXES), TRIVANDRUM-695001.**
**R1 BY SENIOR GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN**
**THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 15-12-2020, ALONG WITH OT.Rev.40/2015, THE COURT ON 15-12-2020 PASSED THE FOLLOWING:**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
## **JUDGMENT**
**Dated this the 15th day of December 2020 K.VINOD CHANDRAN, J.**
**The revisions are respectively concerned with assessment years 2007-08 and 2008-09. The facts are identical but the consideration of the Tribunal is**
**slightly different. On facts we first refer to O.T.R.No.40/2015. Therein, the sale of furniture and lightning equipment were made to three entities in the Special Economic Zone(SEZ); one to a unit of Wipro Limited, the assessee itself. The two other entities were SFO Technologies Pvt Limited and LT Tech Park. In O.T.R.No. 180/2017, the sale was only to the unit of Wipro Ltd. within the SEZ.**
**2. The Tribunal found in the first year that there is nothing to show that the transfer was made to the units of the assessee. SFO Technologies and LT Tech Park were admittedly not the units of the assessee. As far as Wipro Ltd. is concerned, it has a separate registration under Kerala Value Added Tax (KVAT) Act from that of the transferor. The returns**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**were filed claiming exemption for sale of building materials to units in the SEZ. There could be no exemption for furniture and lightning equipment and sale made to different entities is taxable, was the finding.**
**3. In the second year, the Tribunal found that there is no declaration in Form NO.43 duly signed and sealed by the buyer within the SEZ. There can hence be no claim of exemption as sales to units under SEZ.**
**4. Two questions arise in the above revisions, which we re-frame as follows:**
_**1) Whether the Tribunal was right in denying the claim of exemption on sales to units in the SEZ?**_
_**2) Ought not the Tribunal have allowed the exemption on the ground that the sale is to a unit of the assessee itself ?**_
## **5. Learned Sr. Counsel for the assessee points**
**out that the transferor and the transferee have only**
**one registration number under the Company's Act and**
**are not two separate entities. The sale was**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**5**
**returned as exempted under sale to SEZ units by a mistake. In fact there is no sale and only transfer of the goods from one unit to another. The learned Sr. Counsel also relied on** _**Government Wood Works vs. State of Kerala, 1988(69) STC 62.**_
**6. The learned Senior Government Pleader especially pointed out the proviso under Section 16 of the Act which restricts the entitlement of a person to only one registration. If the two units were of the same entity, then under Sub-section 4 of Section 16, both the units could have been functioned under the same registration number. It is pointed out from the documents produced along with the memo dated 25.11.2020 that the assessee had two registration numbers, filed two separate audit statements and the master data of the Company shows it to be registered even under the Companies Act separately.**
**7. The assessee also has produced documents by memo dated 27.11.2020 to substantiate that the units are under the same entity.**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**6**
**8. The question now raised before us is one of fact and not law. But still such an objection having been raised by the Government, we looked into the issue to understand whether there should be a remand. There are two registrations under the KVAT ACT produced as Annexure A and B of O.T.R.No. 40/2015. The registrations are seen to be in the name of Wipro Limited and Wipro Ltd. Obviously the difference is only on account of the registration certificates under Annexure B, having employed the short form of 'Limited'. The fact remains that both the registrations are for the very same company. The master data of the Companies produced by the learned Government Pleader is seen explained by Annexures J1 to J6, produced by the assessee. The Company was first registered under the Registrar of Companies (ROC), Mumbai (J1) and then with change of name as Wipro Products Limited under the very same ROC(J2). Annexure J3 is the certificate evidencing change of name to Wipro Limited. Later the registration has been shifted to ROC Karnataka. The**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**7**
**separate audit report was necessitated only because of the two registrations taken under KGST Act. We are convinced that the unit is one which has taken two separate registrations. However, that does not make the transfer effected of furniture and lighting equipment between the units a sale exigible to tax. Though under the KGST Act; reliance can be placed on** _**Government Wood Works**_ **to hold that the transfer of goods from Wipro Ltd at Calicut to Wipro Limited at Cochin is not a sale.**
**9. On the question of exemption we find that the assessee having no claim under sale to SEZ units especially when the materials sold do not come under cover of exemption and also for the reason of no declaration having been produced. We answer the first question of law against the assessee and in favour of the revenue.**
**10. We answer the 2[nd] question in favour of the assessee and against the revenue, but only with respect to the transfer to Wipro Limited, the IT unit of the assessee in the SEZ. The other**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**8**
**transactions are admittedly between two different entities which are taxable.**
**The revisions are partly allowed. No order on**
## **costs.**
**Sd/-**
**K.VINOD CHANDRAN JUDGE Sd/T.R.RAVI JUDGE**
**uu**
**16.12.2020**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**9**
## **APPENDIX OF OT.Rev 40/2015**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE A TRUE COPY OF REGISTRATION CERTIFICATE DATED 30.05.2014 OF THE PETITIONER'S KOCHI DIVISION.**
**ANNEXURE B TRUE COPY OF REGISTRATION CERTIFICATE DATED 31.05.2007 OF THE PETITIONER'S CONSUMER GOODS DIVISION AT KOZHIKODE.**
**ANNEXURE C TRUE COPY OF SAMPLE COPY OF STOCK TRANSFER INVOICE DATED 05.07.2008.**
**ANNEXURE D TRUE COPY OF ASSESSMENT ORDER DATED 31.12.2008 PASSED BY THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-1, COMMERCIAL TAXES, KOZHIKODE. ANNEXURE E TRUE COPY OF APPELLATE ORDER DATED 01.06.2012 PASSED BY THE DEPUTY COMMISSIONER (APPEALS)-II, COMMERCIAL TAXES, KOZHIKODE. ANNEXURE F TRUE COPY OF APPEAL DATED 11.07.2012 FILED BY THE PETITIONER BEFORE THE APPELLATE TRIBUNAL. ANNEXURE G CERTIFIED COPY OF IMPUGNED ORDER DATED 10 -12-2014 OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE IN T.A.(VAT) NO.71 OF 2014 ANNEXURE H TRUE COPY OF INTERIM ORDER DATED 13 -9-2012 PASSED BY THE APPELLATE TRIBUNAL IN PETITIONER'S STAY PETITION ANNEXURE I TRUE COPY OF BANK GUARANTEE FURNISHED BY THE PETITIONER**
**OT.Revs.Nos.40 of 2015 & 180 of 2017**
**10**
## **APPENDIX OF OT.Rev 180/2017**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE A TRUE COPY OF REGISTRATION CERTIFICATE DATED 30.05.2014 OF THE PETITIONER'S KOCHI DIVISION ANNEXURE B TRUE COPY OF REGISTRATION CERTIFICATE DATED 31.05.2007 OF THE PETITIONER'S CONSUMER GOODS DIVISION AT KOZHIKODE ANNEXURE C TRUE COPY OF SAMPLE COPY OF STOCK TRANSFER INVOICE DATED 05.07.2008 ANNEXURE D TRUE COPY OF ASSESSMENT ORDER DATED 30.09.2008 PASSED BY THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-I, COMMERCIAL TAXES, KOZHIKODE ANNEXURE E TRUE COPY OF APPELLATE ORDER DATED 10.02.2012 BY THE DEPUTY COMMISSIONER (APPEALS)-II, COMMERCIAL TAXES, KOZHIKODE ANNEXURE F TRUE COPY OF APPEAL DATED 11.04.2012 FILED BY THE PETITIONER BEFORE THE APPELLATE TRIBUNAL ANNEXURE G CERTIFIED COPY OF IMPUGNED ORDER DATED 31.01.2017 OF THE KERALA VALUE ADDED TAX ADDITIONAL APPELLATE TRIBUNAL, PALAKKAD IN TA(VAT)NO. 299 OF 2016 ANNEXURE H TRUE COPY OF ORDER DATED 05-06-2012 PASSED BY THE APPELLATE TRIBUNAL**
