M/S.Nims Hospital And Pharmacy vs. State Tax Officer
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941 WP(C).No. 10914 of 2019 PETITIONER/S: M/S.NIMS HOSPITAL AND PHARMACY, VELLAMKULAM BUNGLOW, KOOTTAPPANA, ATHIYANOOR, ARALUMOODU P.O., NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR M.S.FAIZAL KHAN. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 STATE TAX OFFICER, STATE GST DEPARTMENT, NEYYATTINKARA - 695 121. 2 THE COMMISSIONER OF COMMERCIAL TAXES, TAX TOWERS, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002. OTHER PRESENT: SR. G.P. SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 10914/2019 -2- J U D G M E N T Heard Sri Harisankar V. Menon for the petitioner and Sri C.K. Govindan, the learned Senior Government Pleader for the respondents.
The petitioner runs a hospital at Neyyattinkara, and files the instant writ petition challenging Ext.P2 assessment order dated 31.08.2018. The learned Counsel for the petitioner does not dispute that the petitioner has statutory remedy of appeal under Section 55 of the KVAT Act, but contends that the legal objections raised by the petitioner are squarely covered by the reported decision of this Court in Sanjose Parish Hospital v. Commercial Tax Officer - [2019 1) KHC 377 (FB]. Hence, the petitioner prays for setting aside Ext.P2 assessment order.
The learned Senior Government Pleader opposes the writ prayer particularly by inviting the attention of the Court to Ext.P2 assessment order dated 31.08.2018 and that Sanjose Parish Hospital
W.P.(C) No. 10914/2019 -3- case was decided on 18.01.2019 and for that reason order of assessment (Ext.P2) cannot be reviewed by this Court; for there are other circumstances which the petitioner is required to satisfy before claiming the exemption on sale of instruments in discharge of services in the hospital. According to him, these are juri ictional facts and the appellate authority ought to be allowed not only to examine all juri ictional facts, but consider the applicability of Sanjose Parish Hospital and decide the legality of Ext.P2 assessment order.
After perusing the relevant portion in the assessment order and Sanjose Parish Hospital this Court is of the view that by relegating the petitioner to workout the remedy of appeal there would be an added advantage in finalising the assessment by examining the juri ictional facts, apply the principles laid down by this Court in Sanjose Parish Hospital case. This Court if entertains the writ petition, this Court will have to examine the juri ictional objections that may be raised by the respondents and decide the issue.
W.P.(C) No. 10914/2019 -4- Such course is avoided in the facts of this case.
Having regard to above view, the writ petition is disposed of by this order: a) Ext.P2 assessment order is suspended for six weeks from today. b) The petitioner files appeal and also an application to stay Ext.P2 assessment order within two weeks from today. c) The appellate authority considers and passes orders on the stay petition filed by the petitioner as noted above by considering the principles laid down by this Court in Sanjose Parish Hospital and also other decisions which may be brought to the notice of the appellate authority by the parties before the expiry of six weeks' time granted by this Court. d)
The appeal if otherwise in order is disposed of within ten weeks from today. S.V.BHATTI JUDGE jjj
W.P.(C) No. 10914/2019 -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2013-14. EXHIBIT P2 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2013-14.
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.