Kalyan Jewellers INDIA LTD. vs. State Of Kerala
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The petitioner, Kalyan Jewellers India Ltd., filed a Review Petition seeking to review an order dated March 8, 2023, passed by the High Court of Kerala in O.T. Revision No. 193 of 2017. The earlier order had dismissed the revision petition, relying on a Division Bench judgment in Commercial Taxes Officer, Thrissur vs. Chungath Jewellery & Ors. and a Supreme Court order affirming it. The petitioner contended that the previous dismissal was erroneous because the Chungath Jewellery judgment only covered certain questions of law raised in the revision, specifically Questions 'A' to 'F'. The petitioner argued that Questions 'G', 'H', and 'I' remained unaddressed and required separate consideration on merits. The petitioner also pointed out a procedural history where a prior revision dismissal was set aside by another order dated April 11, 2018, to consider seven unaddressed questions of law.
Held
The Court allowed the Review Petition. It found merit in the petitioner's submission that the decision in Chungath Jewellery, along with the aspect of natural justice considered by an earlier Division Bench, covered only Questions of law 'A' and 'F' raised in the O.T. Revision. The Court acknowledged that the earlier Review Petition was allowed specifically to consider Questions 'G', 'H', and 'I', which had not been addressed. The Court also noted that the Chungath Jewellery decision did not cover these specific questions. The Court rejected the Revenue's argument that the grounds for review under Section 63(8) of the Kerala Value Added Tax Act were not met, citing the Supreme Court's decision in M.M. Thomas v. State of Kerala and Another, which affirmed the High Court's plenary powers to cure errors apparent on the face of the record. The Court concluded that the interests of justice warranted allowing the Review Petition to enable a consideration of Questions of law 'G', 'H', and 'I' on merits. Consequently, the Court recalled its earlier order dated March 8, 2023, and restored O.T. Revision No. 193 of 2017 to the file for further consideration.
Key Issues
1. Whether the High Court's order dated March 8, 2023, in O.T. Revision No. 193 of 2017, which dismissed the revision petition based on the decision in Commercial Taxes Officer, Thrissur vs. Chungath Jewellery & Ors., correctly addressed all the questions of law raised by the petitioner? Petitioner's Arguments: - The decision in Chungath Jewellery only covers Questions of law 'A' to 'F' raised in the O.T. Revision. - Questions of law 'G', 'H', and 'I' were not considered in the Chungath Jewellery judgment and require separate consideration on merits. - The earlier order dated April 11, 2018, had allowed a Review Petition to restore the O.T. Revision to consider seven unaddressed questions of law, including 'G', 'H', and 'I'. - The order dated March 8, 2023, was passed without noticing these aspects. Revenue's Arguments: - The grounds necessary for maintaining the Review Petition under Section 63(8) of the Kerala Value Added Tax Act have not been made out by the petitioner. - The Review Petition ought to be dismissed on this ground alone.
Sections Cited
Section 63(8)
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Cause title — parties, addresses and appearances
O R D E R D r . A.K. Jayasankaran Nambiar, J. This Review Petition seeks review of our order dated 8.3.2023 in O.T. Revision No.193 of 2017. By the said order, we had found as follows: “Heard both sides. The issue raised in this case is squarely Jewellery & Ors. (2021) 94 GSTR 33, Kerala) which view was affirmed by the order dated 11.12.2021 of the Supreme Court that dismissed the SLP Nos. 20076 to 20088 of 2021 preferred against the judgment of this court. Taking note of the said judgment relied upon by the Revenue, this revision petition is dismissed by answering the questions of law raised therein in favour of the Revenue and against the assessee.”
In the Review Petition, the revision petitioner points out that earlier the O.T. Revision was dismissed by a Division Bench of this Court through its judgment dated 23.11.2017 by answering only two of the nine Questions of law that were raised in the O.T. Revision. The petitioner therefore preferred R.P.No.245 of 2018 before this Court IN that was allowed by an order dated 11.4.2018 on finding that seven Questions of law, raised as Question Nos.'C' to 'I' in the O.T. Revision had not been considered in the judgment dated 23.11.2017. The Review Petition was thus allowed for the purposes of restoring the O.T. Revision to the files of this Court. It was without noticing the above aspects and by relying on the submissions of the learned counsel on either side that the issues raised in the O.T. Revision stood covered by the decision of this Court in Commercial Taxes Officer, Thrissur vs. Chungath Jewellery & Ors. - [(2021) 94 GSTR 33, Kerala)] that we had once again dismissed the O.T. Revision by our order dated 8.3.2023. 3. The learned senior counsel Sri.Arvind P. Datar, assisted by Adv.Sri.S.Anil Kumar appearing on behalf of the petitioner points out that the decision in Chungath Jewellery [supra] covers only Questions of law 'A' to 'F' in the O.T. Revision and that Questions of law 'G', 'H' and 'I' have to be considered separately on merits. He submits that it if for this purpose that the present Review Petition has been filed.
We find force in the said submissions of the learned senior counsel for, it is true that the decision in Chungath Jewellery IN [supra] as also the aspect of natural justice violation that was considered by the earlier Division Bench would together cover only Questions of law 'A' and 'F' raised in the O.T. Revision. The earlier Review Petition was allowed by this Court only to consider the Questions including Questions of law 'G' 'H' and 'I' that were not considered earlier by this Court while dismissing the O.T. Revision.
The learned Special Government Pleader Sri.Mohammed Rafiq would point out that the grounds necessary for maintaining the Review Petition in terms of Section 63(8) of the Kerala Value Added Tax Act have not been made out by the petitioner, and hence, the Review Petition ought to be dismissed for that reason alone. We find ourselves unable to accept the said submission of the learned Government Pleader. As noticed by the Supreme Court in M.M. Thomas v. State of Kerala and Another – [(2000) 1 SCC 666], the High Court, in view of its plenary powers, is not helpless to cure errors apparent on the face of the record. It is not in dispute that Questions of law 'G', 'H' and 'I' were never answered by this Court while dismissing the O.T. Revision on the earlier occasion. It is also not in dispute that the decision in Chungath Jewellery [supra] does not cover the Questions of law raised as 'G', 'H' and 'I' in the O.T. Revision. We are therefore of the view that the interests of justice IN would warrant that we allow this Review Petition to enable a consideration of Questions of law 'G', 'H' and 'I' raised in the O.T. Revision on merits. We therefore allow this Review Petition, by recalling our earlier order dated 8.3.2023 in O.T. Revision No.193 of 2017, and restoring the said O.T. Revision on file. The Review Petition is allowed. DR. A.K.JAYASANKARAN NAMBIAR JUDGE MOHAMMED NIAS C.P. JUDGE
prp/ IN
Appendix — schedule of exhibits
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.