Rajasthan High Court - Jaipur
Narayana Hrudayalaya Limited vs Commercial Taxes Officer & Anr on 10 October, 2017
Author: M.N. Bhandari
Bench: M.N. Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
1. S.B. CIVIL WRIT PETITION NO. 17427/2017
NARAYANA HRUDAYALAYA LIMITED HAVING ITS REGISTERED
OFFICE AT NH HEALTH CITY, NO. 258/A, BOMMASANDRA
INDUSTRIAL AREA, BANGALORE- 560099 AND HAVING ITS
HOSPITAL AT SECTOR 28, PRATAP NAGAR, SANGANER, JAIPUR,
RAJASTHAN THROUGH ITS AUTHORIZED SIGNATORY KARTHIK
RAMAKRISHNAN, S/O B RAMAKRISHNANAGED ABOUT 34 YEARS,
R/OE-603, ASHADEEP GREEN AVENUE, JAGATPURA, JAIPUR-
302017.
......PETITIONER
VERSUS
1. THE COMMERCIAL TAX OFFICER, CIRCLE-C, COMMERCIAL
TAX DEPARTMENT, ROOM NO. 419, 3rd FLOOR, JHALANA
INDUSTRIAL AREA, JAIPUR (RAJASTHAN)
2. THE COMMISSIONER, COMMERCIAL TAXES, RAJASTHAN
KAR BHAWAN, AMBEDKAR CIRCLE, JAIPUR, RAJASTHAN
.......RESPONDENT
2. S.B. CIVIL WRIT PETITION NO. 17429/2017 NARAYANA HRUDAYALAYA LIMITED HAVING ITS REGISTERED OFFICE AT NH HEALTH CITY, NO. 258/A, BOMMASANDRA INDUSTRIAL AREA, BANGALORE- 560099 AND HAVING ITS HOSPITAL AT SECTOR 28, PRATAP NAGAR, SANGANER, JAIPUR, RAJASTHAN THROUGH ITS AUTHORIZED SIGNATORY KARTHIK RAMAKRISHNAN, S/O B RAMAKRISHNANAGED ABOUT 34 YEARS, R/OE-603, ASHADEEP GREEN AVENUE, JAGATPURA, JAIPUR- 302017.
......PETITIONER VERSUS (2 of 6) [ CW-17427/2017]
1. THE COMMERCIAL TAX OFFICER, CIRCLE-C, COMMERCIAL TAX DEPARTMENT, ROOM NO. 419, 3rd FLOOR, JHALANA INDUSTRIAL AREA, JAIPUR (RAJASTHAN)
2. THE COMMISSIONER, COMMERCIAL TAXES, RAJASTHAN KAR BHAWAN, AMBEDKAR CIRCLE, JAIPUR, RAJASTHAN .......RESPONDENT
3. S.B. CIVIL WRIT PETITION NO. 17432/2017 NARAYANA HRUDAYALAYA LIMITED HAVING ITS REGISTERED OFFICE AT NH HEALTH CITY, NO. 258/A, BOMMASANDRA INDUSTRIAL AREA, BANGALORE- 560099 AND HAVING ITS HOSPITAL AT SECTOR 28, PRATAP NAGAR, SANGANER, JAIPUR, RAJASTHAN THROUGH ITS AUTHORIZED SIGNATORY KARTHIK RAMAKRISHNAN, S/O B RAMAKRISHNANAGED ABOUT 34 YEARS, R/OE-603, ASHADEEP GREEN AVENUE, JAGATPURA, JAIPUR- 302017.
......PETITIONER VERSUS
1. THE COMMERCIAL TAX OFFICER, CIRCLE-C, COMMERCIAL TAX DEPARTMENT, ROOM NO. 419, 3rd FLOOR, JHALANA INDUSTRIAL AREA, JAIPUR (RAJASTHAN)
2. THE COMMISSIONER, COMMERCIAL TAXES, RAJASTHAN KAR BHAWAN, AMBEDKAR CIRCLE, JAIPUR, RAJASTHAN .......RESPONDENT
4. S.B. CIVIL WRIT PETITION NO. 17434/2017 NARAYANA HRUDAYALAYA LIMITED HAVING ITS REGISTERED OFFICE AT NH HEALTH CITY, NO. 258/A, BOMMASANDRA INDUSTRIAL AREA, BANGALORE- 560099 AND HAVING ITS HOSPITAL AT SECTOR 28, PRATAP NAGAR, SANGANER, JAIPUR, RAJASTHAN THROUGH ITS AUTHORIZED SIGNATORY KARTHIK (3 of 6) [ CW-17427/2017] RAMAKRISHNAN, S/O B RAMAKRISHNANAGED ABOUT 34 YEARS, R/OE-603, ASHADEEP GREEN AVENUE, JAGATPURA, JAIPUR- 302017.
......PETITIONER VERSUS
1. THE COMMERCIAL TAX OFFICER, CIRCLE-C, COMMERCIAL TAX DEPARTMENT, ROOM NO. 419, 3rd FLOOR, JHALANA INDUSTRIAL AREA, JAIPUR (RAJASTHAN)
2. THE COMMISSIONER, COMMERCIAL TAXES, RAJASTHAN KAR BHAWAN, AMBEDKAR CIRCLE, JAIPUR, RAJASTHAN .......RESPONDENT ____________________________________________________ For Petitioner(s) : Mr.Sanjay Jhanwar with Ms.Archana For Respondent(s) : Mr.RB Mathur with Mr.Nikhil Simlote, Ms.Tanvi Sahai, Ms.Meenal Ghiya and Ms.Aanchal Singh ____________________________________________________ HON'BLE MR. JUSTICE M.N. BHANDARI Judgment 10/10/2017 By these writ petitions, a challenge is made to the assessment order dated 04th August, 2017.
Learned counsel for the respondents has raised objection regarding maintainability of the writ petitions as statue provides for remedy of appeal against the assessment order.
Learned counsel for the petitioner submits that no factual dispute exists in the matter thus even the writ petition is maintainable. He would not be contesting the writ petition on (4 of 6) [ CW-17427/2017] facts, but, advance arguments purely on question of law, that too, in reference to Article 366 (29A) of the Constitution of India. It is to show that in few cases, there cannot be split between service and sale and the issue is squarely covered by the judgment in the cases of Bharat Sanchar Nigam Ltd. & Anr. Vs. Union of India (UOI) & Ors. reported in AIR 2006 SC 1383, Tata Main Hospital Vs. The State of Jharkhand & Ors. reported in 2008 (2) JCR 174, Fortis Health Care Limited and Ors. Vs. State of Punjab & Ors. reported in 2015(2) TMI 1014 & M/s. International Hospital Pvt. Ltd. Vs. State off UP & 2 Ors. reported in 2014(2) ADJ 474. Accordingly, the petitioner company may not be relegated for the alternative remedy of appeal as it cannot be taken to be a bar for exercising jurisdiction under Article 226 of the Constitution of India.
Learned counsel for the respondents has contested the writ petitions. It is stated that when statue provides for remedy of appeal, it should be avail by the petitioner company. It is moreso when, even factual aspects are required to be taken into consideration for the reason that on a discovery, it was found that how the petitioner company is managing its affairs for purchase of stents and for procedure thus an argument in reference to Article 366 (29A) of the Constitution of India has to be applied on the facts of this case. It is more specifically in reference to the State Legislation because definition of sale has been separately provided under Section 235 of the Rajasthan Value Added Tax, 2003 (for short "the Act of 2003"). A reference of judgment of the Kerala (5 of 6) [ CW-17427/2017] High Court in the case of Malankara Orthodix Syrian Church Vs., Sales Tax Officer & Anr. reported in (2004) 135 STC 224 (Kerala High Court) and San Jose Parish Hospital VS. Commercial Tax Officer, Thrissur & Ors. reported in (2012) 55 VST 208 (Ker.) has been given where the similar issue was considered and decided.
Learned counsel for the petitioner, at this stage, submits that if an appeal is preferred, it is going to take time and, in the meanwhile, the petitioner company would remain in dilemma whether to charge VAT/GST even on the value of stents, though, that is the part of service and should not be charged separately. It would otherwise be onerous to the patients.
I have considered rival submissions made by learned counsel for the parties and perused the record.
A preliminary objection regarding maintainability of the writ petition has been raised by learned counsel for the respondents. It is in reference to remedy of appeal provided under the Act of 2003. The remedy of appeal is provided under the statue, however, it cannot be taken as complete bar to exercise the jurisdiction under Article 226 of the Constitution of India.
Learned counsel for the petitioner company has advanced his arguments in reference to Article 366 (29A) of the Constitution of India to show that sale and service cannot be separated in the procedure for surgery to put stent in the heart. A composite bill is raised, however, it is disputed by learned counsel for the respondents by referring to the bill raised by pharmacy (6 of 6) [ CW-17427/2017] where stent was purchased in the name of patient/s with credit note. The aforesaid issue needs a factual finding and discussion thereupon.
In view of the above, I find it to be proper to relegate the petitioner company for alternative remedy of appeal, however, to save them from uncertainty, the Appellate Authority would decide the appeal within a period of one month from the date of its receipt and, for that purpose, the respondents would co- operate with the Appellate Authority to decide the case expeditiously.
As prayed, the petitioner company is granted fifteen days time to file appeal and, if it is filed, would be treated within limitation. In case, the petitioner company succeeds in the appeal, the amount of pre-deposit would be refunded to them forthwith and, for which, compliance of this order would be made by the respondents.
With the aforesaid, these writ petitions are disposed of. A copy of this order be placed in each connected file.
(M.N. BHANDARI)J. Preeti, PA/247-250