Hercules Automobiles International Private Limited vs. The State Of Kerala - Kerala High Court, 05 April 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941 OP (TAX).No. 3 of 2019 AGAINST THE ORDER IN TA(VAT)121/2018OF INCOME TAX & SALES TAX APPELLATE TRIBUNAL, ADDL. BENCH, KOTTAYAM. PETITIONER: HERCULES AUTOMOBILES INTERNATIONAL PRIVATE LIMITED P.B.NO.4405, CCSB ROAD, CHUNGOM, ALAPPUZHA- 688011, REPRESENTED BY ITS AUTHORISED SIGNATORY MR.JOSEPH VARGHESE. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM RESPONDENTS: 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY(TAXES), GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2 THE ASSISTANT SECRETARY, THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, KOTTAYAM BENCH, NAGAMPADAM, KOTTAYAM-686001. 3 THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES(APPEALS) DEPARTMENT OF COMMERCIAL TAXES, (CURRENTLY STATE GOODS AND SERVICES TAX DEPARTMENT), TAX COMPLEX, ASHRAMAM P.O,,CHINNAKKADA, KOLLAM- 691013. OP(Tax) No. 3 OF 2019 -:2:- 4 THE ASSISTANT COMMISSIONER (ASSESSMENT) SPECIAL CIRCLE, DEPARTMENT OF COMMERCIAL TAXES, (CURRENTLY STATE GOODS AND SERVICES TAX DEPARTMENT, ALAPPUZHA-688001. 5 THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, (CURRENTLY STATE GOODS AND SERVICES TAX DEPARTMENT)ALAPPUZHA-688001. 6 THE CHIEF MANAGER, STATE BANK OF INDIA, ALAPPUZHA BRANCH-(00802), BEACH ROAD, ALAPPUZHA-688012. OTHER PRESENT: SR.GP-SRI.V.K.SHAMSUDHEEN THIS OP TAX HAVING COME UP FOR ADMISSION ON 05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OP(Tax) No. 3 OF 2019 -:3:- C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ. ----------------------------------------------------- OP(Tax) No. 3 OF 2019 ------------------------------------------------------- Dated this the 5th day of April, 2019

J U D G M E N T Abdul Rehim

, J. The petitioner is invoking the supervisory juri iction vested on this court under Article 227 of the Constitution of India, challenging Ext.P7 interim order passed by the Kerala Value Added Tax Appellate Tribunal, Additional Bench, Kottayam, dated 12.02.2019 in Intp. No.135/2018 in T.A.(VAT) 121/2018. 2. The interim application was filed in an appeal preferred before the Tribunal challenging an assessment completed against the petitioner, with respect to the year 2014- 2015, which was confirmed by the first appellate authority. In the interim application, the petitioner prayed for stay of collection of the balance tax in dispute, pending disposal of the appeal. While

OP(Tax) No. 3 OF 2019 considering prima facie merit in the appeal for deciding the question of granting stay, the Tribunal observed that, even at the stage of the second appeal the petitioner could not produce any materials to substantiate their contentions. Therefore it was observed that no case is made out for granting an absolute stay. However, interim stay was granted subject to condition of the petitioner depositing 30% of the demand and on furnishing security for the balance amount.

Contention of the petitioner is that, the observation made by the appellate Tribunal is factually incorrect. It is pointed out that the petitioner had produced a large number of documents before the Tribunal, supported by a petition seeking for acceptance of those documents. Ext.P5 is the covering letter dated 6.12.2018, with respect to the production of those documents. It is contended that the Tribunal had failed to advert to those documents. Hence it is pointed out that the condition imposed for depositing 30% of the demand is made without

OP(Tax) No. 3 OF 2019 properly appreciating the contentions raised, which are supported by the documents produced. Hence the petitioner is seeking interference by this court invoking the supervisory juri iction vested on this court.

It is trite that, while considering the question of granting interim relief, the appellate authority is bound to look into the merits of the appeal on a prima facie basis. For appreciating the merits, the appellate authority is bound to consider the documents if any produced in support of the contentions raised. In the case at hand, it is evident that the petitioner had produced documents in support of their contentions, prior to passing of the impugned order. But the observation contained in Ext.P7 is that the petitioner had failed to produce any documents, even before the appellate tribunal. If the contention in this regard is true and correct, we are persuaded to accept that there occurred a denial of the principles of natural justice, to the extent that the Tribunal had failed in OP(Tax) No. 3 OF 2019 appreciating the contentions raised in its real perspective, based on a perusal of the supporting documents.

Learned Government Pleader submitted on instructions from the 2nd respondent that, the documents in question were produced by the petitioner before the Tribunal, on 06.12.2018 and hearing of interim application was on 07.12.2018. Therefore it is evident that, at the time when the impugned interim order was passed by the Tribunal, the documents were available before the said authority. Hence it is evident that there occurred a failure on the part of the Tribunal in adverting to those documents. However, the learned Government Pleader submitted that, the petitioner had now filed an interim application seeking rectification of Ext.P7 order, on the basis that the Tribunal had not considered the documents produced. We are of the opinion that a direction to the Tribunal to pass appropriate orders on the rectification application, after taking note of the documents produced before the Tribunal,

OP(Tax) No. 3 OF 2019 would suffice to meet the ends of justice.

Hence, the above original petition is hereby disposed of by directing the Kerala Value Added Tax Appellate Tribunal, Additional Bench, Kottayam to consider and dispose of Interim Application No.1/2019 filed seeking rectification of the order passed by the Tribunal in Intp. No.135/2018, dated 12.02.2019, within a period of three weeks from the date of receipt of a certified copy of this judgment.

Till the rectification application is disposed of by the Tribunal as directed above, no coercive steps for realisation of the balance demand in dispute shall be pursued. C.K. ABDUL REHIM, JUDGE. R. NARAYANA PISHARADI, JUDGE. ul/- [] P.S. to Judge.

OP(Tax) No. 3 OF 2019 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 AOF ASSESSMENT ORDER DATED 02.09.2017 PASSED BY THE 4TH RESPONDENT. EXHIBIT P2 AOF ORDER DATED 28.02.2018 PASSED BY THE 3RD RESPONDENT. EXHIBIT P3 AOF THE APPEAL MEMORANDUM(WITHOUT ANNEXURES) DATED 04.05.2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 AOF STAY PETITION DATED 04.05.2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5 AOF THE COVERING LETTER DATED 06.12.2018 (WITHOUT ANNEXURES) EVIDENCING THE RECEIPT OF AFFIDAVIT AND ADDITIONAL DOCUMENTS FILED BY THE PETITIONER BEFORE THE OFFICE OF THE 3RD RESPONDENT. EXHIBIT P6 AOF THE ARGUMENT NOTE DATED 07.12.2018 SUBMITTED BEFORE THE APPELLATE TRIBUNAL DURING THE HEARING OF STAY PETITION. EXHIBIT P7 AOF THE ORDER DATED 12.02.2019 ISSUED BY THE KERALA VALUE ADDED TAX/AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM, IN INTP.NO.135/2018 IN TA(VAT) NO.121/2018. EXHIBIT P7 A AOF THE POSTAL RECEIPT SHOWING THE RECEIPT OF STAY ORDER ON 27.02.2019. OP(Tax) No. 3 OF 2019 EXHIBIT P8 AOF THE AFFIDAVIT AND PETITIONS DATED 18.03.2019 FILED BEFORE THE 2ND RESPONDENT FOR RECTIFICATION AND FOR ACCEPTING ADDITIONAL DOCUMENTS(WITHOUT ANNEXURES) EXHIBIT P9 AOF THE COVERING LETTER DATED 19.03.2019 EVIDENCING THE PROOF OF SUBMITTED OF EXT-P8 DOCUMENT.