QUALITY HOTELS PVT. LTD V. THE COMMERCIAL TAX OFFICER

WP(C)/37956/2015

AI Insights

Quality Hotels Pvt. Ltd, engaged in running a bar attached hotel, was assessed under the KGST Act by the Commercial Tax Officer, Chalakudy, for the years 2007-08 to 2010-11. The hotelier's appeals against these assessments were initially successful but were later contested by the Department. The Department's appeal was dismissed as withdrawn due to procedural errors, leading to the filing of new appeals. The hotelier challenged these new appeals, arguing they were not maintainable. The court's decision hinged on whether the withdrawal of the initial appeal barred the filing of new appeals by the State.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 725853 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 29-05-2024
• Assessment Year: misc
• Laws Referred To: KGST Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: THUSHARA JAMES
• Assessee Lawyers: P M POULOSE; P D BRUNO
• Keywords: Commercial tax; Rectification petition; Writ petition; Sales Tax Appellate Tribunal
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946 WP(C) NO. 37956 OF 2015 PETITIONER/S: QUALITY HOTELS PVT. LTD, SOUTH CHALAKUDY, REPRESENTED BY ITS MANAGING DIRECTOR MR.HARISH T.A., AGED 42 YEARS, S/O.ASOKAN. BY ADVS. SRI.P.M.POULOSE SRI.P.D.BROONO RESPONDENT/S: 1 THE COMMERCIAL TAX OFFICER CHALAKUDY-680 307. 2 THE DEPUTY COMMISSIONER COMMERCIAL TAXES, POOTHOLE, THRISSUR-680 004. 3 THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD-678 001, REPRESENTED BY ITS SECRETARY. DR. THUSHARA JAMES, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 37956 OF 2015 2 JUDGMENT The petitioner is a Private Limited company, engaged in the running of a bar attached hotel. It is an assessee under the KGST Act on the rolls of the Commercial Tax Officer, Chalakudy. For the assessment years, 2007-08 to 2010-11, the assessment of the petitioner was completed by the Commercial Tax officer, Chalakudy, by order dated 16.11.2011. The petitioner challenged the said order by filing four separate appeals [S.T.A Nos.4, 5, 8 and 9 of 2012] before the First Appellate Authority. The First Appellate Authority, by Exts.P1 and P2 orders (both dated 10.02.2012) allowed the appeals filed by the petitioner. 2. Against the said orders dated 10.02.2012, the Department filed an appeal before the Sales Tax Appellate Tribunal, Additional Bench Palakkad which was numbered as T.A. No.50 of 2012. Since it was noticed that the appeal was presented by the Inspecting Assistant Commissioner, Irinjalakuda and since a single appeal was incompetent, the Department sought to withdraw the appeal in order to enable filing of fresh appeals. However, by order dated 15.02.2013, WP(C) NO. 37956 OF 2015 3 the appeal namely, T.A. No.50/2012 was dismissed, stating the reason that the appellants/State had withdrawn the appeal. On noticing that the earlier order only recorded that the appeal is dismissed as withdrawn, the State filed Rectification Petition No.8/15 in TA No.50/2012, which was allowed by Ext.P8 order, following which four separate appeals (T.A Nos.1, 2, 3 and 4 of 2013) were filed through the competent officer. The petitioner has therefore approached this Court, seeking a writ of prohibition, restraining the Tribunal from proceeding with the appeals filed and which are numbered as TA Nos.1/13, 2/13, 3/13 and 4/13 (Exhibits-P4, P5, P6 and P7) and seeking a declaration that those appeals are not maintainable. 3. Adv. P M. Poulose, the learned counsel appearing for the petitioner would vehemently contend that the appeal filed as T.A. No.50/2012 was dismissed as withdrawn. It is submitted that, even in Ext.P8 order (which is the order of Rectification Petition No.8/2015), the Tribunal had not permit the State to maintain separate appeals, after the dismissal of the earlier appeal. It is submitted that, a reading of Ext.P8 order shows that even now, the subsequent appeals filed by the State are incompetent as the Tribunal has only endorsed WP(C) NO. 37956 OF 2015 4 that the appeal (T.A No.50/12) stands withdrawn and the appeal filed is returned and it did not reserve the right of the State to file fresh appeals. It is submitted that, in such circumstances, the petitioner is entitled to the reliefs sought for. 4. The learned Senior Government Pleader refers to Ext.P8 order to contend that, it is clear from a reading of Ext.P8 order that the Tribunal had clearly permitted the State to withdraw the earlier appeal (namely, T.A. No.50/2012) and to file fresh appeals as the earlier appeal was not maintainable on the ground of some technical irregularities. It is submitted that, while disposing of the Rectification Petition, the Tribunal had itself noted the fact that the earlier appeal is being withdrawn to enable the State to file a fresh appeal. It is submitted that, in such circumstances, the contention of the petitioner that the appeals filed and numbered as T.A Nos.1, 2, 3 and 4 of 2013 are not maintainable, cannot be accepted. 5. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader, I am of the view that the petitioner is not entitled the reliefs sought for in the writ petition. The only question arising for consideration is whether the withdrawal of T.A. No.50/2012 WP(C) NO. 37956 OF 2015 5 will stand in the way of the filing of fresh appeals by the State/its officers. It is true that while withdrawing the appeal (namely T.A. No.50/12), the Tribunal, by order dated 15.02.2013, had noted that the appeal is dismissed as the appellant had endorsed that the appeal is withdrawn. However, a reading of Ext.P8 order will show that while considering the Rectification Application, the Tribunal was of the opinion that the dismissal of the appeal as withdrawn was incorrect as the application for withdrawal clearly mentioned that the State intends to file fresh appeals after withdrawing T.A No.50/2012. Ext.P8 order, allowing the Rectification Application filed by the State to the extent it is relevant, reads as follows:- ‘’1). This Rectification petition is filed by the appellant/petitioner State of Kerala. The petition is filed against the order of the Hon’ble Appellate Tribunal, Palakkad in TA(ST)50/12, dated 15.02.13. TA (ST) 50/12 was filed by the Inspecting Assistant Commissioner, Irinjalakuda at first, and the same was assigned the above Number as TA (ST) 50/12. Subsequently it was found by appellant that the appeal filed is defective, for the reason that the compete authority for filing second appeal is the Deputy Commissioner, Trichur since the first appellate authority is Deputy Commissioner (Appeals). In the instant case the appeal was seen filed by the Inspecting Assistant Commissioner, Irinjalakuda. Secondly it was found that only a single appeal is filed against the four assessment orders. The State ought to have filed separate appeals for each year instead of filing single appeal for all the four years. Therefore Inspecting Assistant Commissioner, Irinjalakuda submitted application for withdrawal of the irregularly filed second appeal reserving the right to file fresh appeals. The Hon'ble Tribunal as per Order No. TA (ST) 50/12, dated 15.02.13 ‘’dismissed’’ the appeal by stating the reason that \"the appellant endorsed that the WP(C) NO. 37956 OF 2015 6 appeal is withdrawn’’. The Revenue now states in this Rectification Petition that the appeal should not have been dismissed having withdrawn the same. This the State points out is an error which is to be rectified. We have heard the learned Law Officer appearing for the Revenue and the representative of the respondent Advocates Sri P.D.Bruno. 2). The petition for rectification is considered. The petitioner ie., Revenue had noted two major irregularities of procedural lapses in filing of TA(ST) 50/12. Therefore they sought to withdraw the appeal to enable them to file fresh appeal curing the defects. This was allowed by the Tribunal. However when the order was issued it was worded as follows;- \"hence this appeal is dismissed as withdrawn‘’. What the Tribunal intended was that the plea for withdrawing the appeal is allowed, so that the petitioner can filed fresh appeal. Having withdrawn the appeal should have been returned to the appellant to enable him to file fresh appeal. We find that the words \"dismissed as withdrawn’’ does not amply communicate the above intention of the Tribunal and therefore it is a mistake apparent on the face of the records liable to be rectified. Hence we order that the words ‘’hence the appeal stands withdrawn and the appeal filed is returned’’ shall be substituted for the words \"Dismissed as withdrawn\" . The petition is thus allowed It is true that Ext.P8 order records that the appeal stands withdrawn and the appeal filed is returned and does not specifically state that the State is given the liberty to file fresh appeals. However, a reading of the order in its entirety clearly shows that the Tribunal had allowed the Rectification Petition, clearly intending to allow the State/its officials to file fresh appeals as the application filed for withdrawal originally states that the appeal namely, T.A.No.50/12 is being withdrawn to enable the State to file fresh appeals after curing the irregularities/defects. Therefore, this Court is not inclined to take a hypertechnical view of the words used in WP(C) NO. 37956 OF 2015 7 Ext.P8 to reach a conclusion that the appeals filed as T.A Nos.1/13, 2/13, 3/13 and 4/13 were not maintainable and was hit by the principles of res judicata. The writ petition fails and it is accordingly, dismissed. Sd/- GOPINATH P. JUDGE ajt WP(C) NO. 37956 OF 2015 8 APPENDIX OF WP(C) 37956/2015 PETITIONER EXHIBITS P1 : TRUE COPY OF THE COMMON ORDER DT 10-2-2012 IN STA 4/2012, STA 5/2012 AND STA 8/2012 OF THE 2ND RESPONDENT APPELLATE AUTHORITY. P2 : TRUE COPY OF THE ORDER DT 10-2-2012 IN STA 9/2012 OF THE 2ND RESPONDNET APPELLATE AUTHORITY. P3 : TRUE COPY OF THE ORDER DT 15-2-2013 IN TA NO.50/2012 OF THE 3RD RESPONDENT. P4 : TRUE COPY OF THE SECOND APPEAL TA NO.1/13 ON THE FILE OF 3RD RESPONDENT. P5 : TRUE COPY OF THE SECOND APPEAL TA NO.2/13 ON THE FILE OF 3RD RESPONDENT. P6 : TRUE COPY OF THE SECOND APPEAL TA NO.3/13 ON THE FILE OF 3RD RESPONDENT. P7 : TRUE COPY OF THE SECOND APPEAL TA NO.4/13 ON THE FILE OF 3RD RESPONDENT. P8 : TRUE COPY OF THE ORDER DT 11-9-2015 IN RECTIFICATION PETITION NO.8/2015 OF THE 3RD RESPONDENT. "