Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 27TH DAY OF JULY 2023 / 5TH SRAVANA, 1945 OT.REV NO. 36 OF 2023 AGAINST THE ORDER IN INTP. 56/2021 IN TA(VAT) 41/2021 OF KERALA VALUE ADDED TAX/AGRL. INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE DATED 28.7.2021.
REVISION PETITIONER/APPELLANT:
ABOOBACKER HAJI C.H, AGED 60 YEARS S/O. N.P. ABDUL RAHIMAN HAJI, WORKS CONTRACTOR, SHAHINAZ THANA, KANNUR.
BY ADV C.K.SREEJITH RESPONDENTS/RESPONDENTS:
1 STATE TAX OFFICER, (WORK CONTRACT) KANNUR, OFFICE OF THE DEPUTY COMMISSIONER OF STATE TAXES, SGSTD, KANNUR-670001 2 THE DEPUTY COMMISSIONER (APPEALS) , STATE GOODS & SERVICE TAX DEPARTMENT, CALICUT – 673006 3 ASSISTANT COMMISSIONER, OFFICE OF THE JOINT COMMISSIONER, STATE GST DEPARTMENT, KANNUR – 670001 4 THE SECRETARY, KERALA VALUE ADDED TAX/ AGRL. INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE- 673032 5 STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, STATE GOODS & SERVICE TAX DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM – 695001
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OT.Rev.Nos.36 & 37of 2023 BY GOVERNMENT PLEADER SMT. SRI.JASMINE M.M THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH OT.Rev.37/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OT.Rev.Nos.36 & 37of 2023 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 27TH DAY OF JULY 2023 / 5TH SRAVANA, 1945 OT.REV NO. 37 OF 2023 AGAINST THE ORDER IN INTP. 54/2021 IN TA(VAT) 40/2021 OF KERALA VALUE ADDED TAX/AGRL. INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE DATED 28.7.2021.
REVISION PETITIONER/APPELLANT:
ABOOBACKER HAJI C.H, AGED 60 YEARS S/O N P ABDUL RAHIMAN HAJI, WORKS CONTRACTOR, SHAHINAZ, THANA, KANNUR.
BY ADV C.K.SREEJITH RESPONDENTS/RESPONDENTS:
1 STATE TAX OFFICER, (WORKS CONTRACT) KANNUR, OFFICE OF THE DEPUTY COMMISSIONER OF STATE TAXES, SGSTD, KANNUR-670001.
2 THE DEPUTY COMMISSIONR, (APPEALS) STATE GODS & SERVICE TAX DEPARTMENT, CALICUT-673006.
3 ASSISTANT COMMISSIONER, OFFICE OF THE JOINT COMMISSIONER, STATE GST DEPARTMENT. KANNUR-670001.
4 THE SECRETARY, KERALA VALUE ADDED TAX/AGRL.INCOME TAX AND SALES TAX APPELLATE, TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE-673032.
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OT.Rev.Nos.36 & 37of 2023 5 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, STATE GOODS AND SERVICE TAX DEPARTMENT, , GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.
BY GOVERNMENT PLEADER SMT. SRI.JASMINE M.M THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH OT.Rev.36/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OT.Rev.Nos.36 & 37of 2023 O R D E R A.K.Jayasankaran Nambiar, J.
As the issue involved in both these OT. Revisions is the same, although they pertain to different assessment years, they are taken up together for consideration and disposed by this common judgment.
2. The petitioner in both these Revision Petitions is a Works Contractor who had filed quarterly returns for the years 2011-12 and 2012-13, respectively, showing nil turnover. The declaration of the petitioner was, however, disputed by the revenue, which proceeded to complete an assessment against him and demand differential tax from him. The petitioner challenged the assessment order before the First Appellate Authority, who remanded the matter back to the Assessing Officer to redo the assessment after affording the petitioner an opportunity to produce books of accounts and after hearing the petitioner.
3. Pursuant to the remand by the First Appellate Authority, the matter was considered again by the assessing authority, and the assessing authority appears to have passed a fresh assessment order confirming the demand against the petitioner. On receipt of the modified assessment order, the petitioner approached the Tribunal with
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OT.Rev.Nos.36 & 37of 2023 an appeal against the First Appellate Authority's order that had remanded the matter to the assessing authority. The Tribunal found that inasmuch as the case of the petitioner before it was that the modified order passed by the assessing authority was not in accordance with the directions in the remand order of the First Appellate Authority, the remedy of the petitioner lay in filing an appeal against the modified assessment order and not to prefer an appeal against the First Appellate Authority's order which was not actually disputed by the petitioner. Further, inasmuch as the appeal preferred by the petitioner before the Tribunal was severely belated since he had waited to get the modified order of the assessing authority before choosing to prefer the appeal against the First Appellate Authority's order, the Appellate Tribunal dismissed the appeal as barred by limitation.
4. In the Revision Petition before us, the petitioner impugns the order of the Appellate Tribunal, dismissing his appeals against the order of the First Appellate Authority.
5. We have heard Sri.C.K.Sreejith, the learned counsel for the petitioner, and Smt.Jasmine, the learned Government Pleader for the State.
6. On a consideration of the rival submissions, we are of the view
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OT.Rev.Nos.36 & 37of 2023 that the Appellate Tribunal cannot be faulted for having rejected the appeals preferred by the petitioner against the orders of the First Appellate Authority. Going by the petitioner's own case before the Appellate Tribunal, his grievance was essentially that the modified order passed by the assessing authority was not in accordance with the directions issued by the First Appellate Authority. There is no whisper in the appeal before the Appellate Tribunal that the petitioner was in any manner aggrieved by the First Appellate Authority's order that remanded the matter to the assessing authority. Under such circumstances, the petitioner could not be treated as a person aggrieved for maintaining an appeal before the Appellate Tribunal. The Appellate Tribunal, therefore, rightly dismissed the appeals preferred by the petitioner, and we see no reason to take a different view in the matter.
Resultantly, both these Revision Petitions fail and are accordingly dismissed.
Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- MOHAMMED NIAS C.P.
JUDGE mns
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OT.Rev.Nos.36 & 37of 2023 APPENDIX OF OT.REV 36/2023 PETITIONER EXHIBITS Exhibit P1 THE
TRUE
COPY
OF
THE
ORDER NO.3227361212/12-13
PASSED
BY
IST RESPONDENT DATED 19/3/19 Exhibit P2 THE TRUE COPY OF DEMAND ISSUED BY THE COMMERCIAL TAX OFFICER(WO)RKS CONTRACT), KANNUR DTD. 19/3/19 Exhibit P3 TRUE COPY OF PROCEEDINGS OF 3RD RESPONDENT DT. 26/02/2021 Exhibit P4 TRUE COPY OF DEMAND NOTICE FOR THE PERIOD 2012-13 DT. 26/2/2021 Exhibit P5 THE TRUE COPY OF THE APPELLATE ORDER NO.
VATA.229/19 & 332/19 DT. 24/6/2019 ISSUED BY 2ND RESPONDENT Exhibit P6 THE TRUE COPY OF MEMORANDUM OF APPEAL BEFORE THE APPELLATE TRIBUNAL.
Exhibit P7 THE TRUE COPY OF THE AFFIDAVIT WITH DELAY CONDONATION PETITION Exhibit P8 THE TRUE COPY OF THE ORDER PASSED IN INTP 56/2021 IN TAVAT 41/2021 ON THE FILE OF KERALA VALUE ADDED TAX/ AGRL. INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHICODE DT. 28.07.2021 Exhibit P9 THE TRUE COPY OF ORDER PASSED BY BY THE HONOURABLE SUPREME COURT VIDE MISCELLANEOUS APPLICATION NO. 665/2021 IN SMW(C) NO.3/2020
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OT.Rev.Nos.36 & 37of 2023 APPENDIX OF OT.REV 37/2023 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE ORDER PASSED DATED 24.01.19.
Exhibit P2 THE TRUE COPY OF THE DEMAND NOTICE DATED 24.01.19.
Exhibit P3 THE TRUE COPY OF THE PROCEEDINGS OF 3RD RESPONDENT DATED 26.02.2021.
Exhibit P4 THE TRUE COPY OF THE DEMAND NOTICE FOR THE PERIOD 2011-12.
Exhibit P5 THE TRUE COPY OF THE APPELLATE ORDER NO.VATA.229/19 & 332/19 DATED 24.06.2019 ISSUED BY 2ND RESPONDENT.
Exhibit P6 THE TRUE COPY OF THE MEMORANDUM OF APPEAL BEFORE THE APPELLATE TRIBUNAL.
Exhibit P7 THE TRUE COPY OF THE AFFIDAVIT WITH DELAY CONDONATION PETITION.
Exhibit P8 THE TRUE COPY OF THE ORDER PASSED IN INTP 54/2021 IN TA(VAT0 40/2021 ON THE FILE OF KERALA VALUE ADDED TAX/AGRL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE DATED 28/07/2021.
Exhibit P9 THE TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT VIDE MISCELLANEOUS APPLICATION
NO.665/2021
IN
SMW(C) NO.3/2020.