M/S. KIZHAKKEVILA AGENCIES V. COMMERCIAL TAX OFFICER

OT.Rev/203/2015

AI Insights

The case involves M/s. Kizhakevila Agencies, a firm engaged in the business of purchasing and selling fishnet, fishnet fabrics, and accessories, which challenged the tax assessments made under the Kerala Value Added Tax Act for the financial year 2005-2006. The firm argued that the commodities they dealt with were exempt from tax as per a clarification under Section 94 of the KVAT Act. However, the Tribunal and the First Appellate Authority found that the commodities were correctly assessed as taxable following their inclusion in the Third Schedule of the KVAT Act by the Kerala Finance Act, 2006. The High Court dismissed the revision petitions, agreeing with the lower authorities' findings.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 735883 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-06-2016
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SHOBA EAPEN
• Assessee Lawyers: BINU GEORGE; HEMALATHA; R RAJESH PULLIKADA
• Keywords: Assessment Reopening; Tax Exemption; VAT; Commodity Classification
• Section: 6.4; 6.4; 94

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938 O.T.Rev.No. 203 of 2015 AGAINST THE ORDER IN T.A.VAT 787/2010 of KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM DATED 11-04-2011 REVISION PETITIONER/PETITIONER/APPELLANT: M/S. KIZHAKKEVILA AGENCIES LEKSHMI NADA, KOLLAM REPRESENTED BY ITS MANAGING PARTNER G.RAMAKRISHNA PILLAI. BY ADVS.SRI.BINU GEORGE SMT.HEMALATHA SRI.R.RAJESH(PULLIKADA) RESPONDENTS/RESPONDENTS: 1. COMMERCIAL TAX OFFICER III CIRCLE, COMMERCIAL TAXES DEPARTMENT, KOLLAM. 691 002. 2. DEPUTY COMMISSIONER (APPEALS) II, COMMERCIAL TAXES DEPARTMENT, ASRAMOM, KOLLAM - 691 002. 3. THE SECRETARY KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM - 682 012. 4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R BY GOVERNMENT PLEADER SMT.SHOBA ANNAMA EAPEN THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 10-06-2016, ALONG WITH O.T.RV. NOS. 214/2015 & OTRV. 215/2015, THE COURT ON THE SAME DAY P ASSED THE FOLLOWING: O.T.Rev.No. 203 of 2015 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1: A TRUE COPY OF ORDER NOS.32020891132/05-06 DATED 16.1.2010. ANNEXURE A2: A TRUE COPY OF THE COMMON ORDER IN KVAT APPEAL NOS.86, 87, 88/10 DATED 27.9.2010. ANNEXURE A3: A TRUE COPY OF COMMON ORDER DATED 11.4.2011 IN T.A. (VAT)NOS.784/10, 785/10, 786/10, 787/10, 788/10 AND 789/10. ANNEXURE A4: A TRUE COPY OF ORDER NO.C3/20255/12/CT DATED 20.10.2012. ANNEXURE A5: A TRUE COPY OF ORDER DATED 18.12.2014 OF INTP NOS.31 AND 32/2013 OF KERALA VAT APPELLATE TRIBUNAL, ADDL. BENCH, TRIVANDRUM. ANNEXURE A6: A TRUE OPY OF FORM 1 AS FILE NO.2015/272/2/300, DATED 15.1.2015. ANNEXURE A6(a): A TRUE COPY OF FORM 10 AS FILE NO.2015/272/2/300, DATED 15.1.2015. // TRUE COPY // P.A. TO JUDGE ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.T.Rev.Nos.203, 214 & 215 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2016 ORDER Antony Dominic, J. These revision petitions are filed by the assessee calling in question the orders passed by the Kerala Value Added Tax/Agricultural Income Tax and Sales Tax Appellate Tribunal in T.A.(VAT)No.787/10, 788/10 and 789/10 respectively . 2. We heard the counsel for the petitioners and the learned Government Pleader appearing for the respondents. 3. The assessee is a firm engaged in the business of purchase and sale of fishnet, fishnet fabrics and accessories. The fishnet, fishnet fabrics and accessories were commodities falling under Entry 18 of the First Schedule to the Act. In view of Section 6(4) of the Kerala Value Added Tax Act, these commodities were exempted from tax. Subsequently, by Kerala Finance Act, 2006, nylon rope O.T.Rev.Nos.203, 214 & 215 of 2015 : 2 : was brought under Entry 92A of the Third Schedule with effect from 1.4.2005 and tax at the rate of 4% was levied. Polyester rope and Polyester twine were also included under Entry 99A of the Third Schedule with effect from 1.7.2006. In view of the statutory changes, assessment for 2005-2006 was reopened in respect of polyester rope and polyester twine. The assessment orders were challenged before the First Appellate Authority. The First Appellate Authority upheld the finding of the Assessing Authority. But, however, modified the orders of assessment in the manner as stated in Annexure B. These orders were challenged before the Tribunal, which confirmed the order of the First Appellate Authority by Annexure C order. It is aggrieved by these proceedings, these revision petitions are filed. 4. The first contention raised by the counsel for the petitioner is that in view of Annexure A4, clarification issued under Section 94 O.T.Rev.Nos.203, 214 & 215 of 2015 : 3 : of the KVAT Act, the goods are exempted from tax. We are unable to accept this contention for the reason that the commodity dealt with in Annexure A4 is fishing rope. Fishing rope was originally included under 18(6) of the First Schedule, while the goods which are found to have been dealt with by the petitioner were included under item 18(3), 18(4) and 18(5) of the First Schedule. Therefore, Annexure A4, which deals with an entirely different commodity, cannot be of any assistance to the petitioner. Counsel then contended that he has not purchased or sold the goods as alleged by the Department. This very contention has been specifically adverted to by the First Appellate Authority and the Tribunal. Reading of the orders passed by the Tribunal would show that this factual contention has been rejected with reference to the materials available on record. Therefore, we cannot upset this finding in O.T.Rev.Nos.203, 214 & 215 of 2015 : 4 : these revisions filed under Section 63 of the KVAT Act. We do not find any illegality in the orders impugned in these revisions. Revision petitions fail and are accordingly dismissed. Sd/- ANTONY DOMINIC JUDGE Sd/- DAMA SESHADRI NAIDU JUDGE jes "