Kerala High Court
M/S.Vysakh International Hotel (P) Ltd vs The State Of Kerala on 25 November, 2020
Bench: K.Vinod Chandran, T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE T.R.RAVI
WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942
S.T.Rev..No.19 OF 2020
AGAINST THE ORDER IN T.A.NO.100/2018 DATED 31-01-2020
OF KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH,
KOZHIKODE.
[ASSESSMENT YEAR 2013-14]
REVISION PETITIONER/ APPELLANT/APPELLANT/ASSESSEE:
M/S.VYSAKH INTERNATIONAL HOTEL (P) LTD.,
PAYYANNUR, KANNUR.
BY ADV. SRI.RAJESH NAMBIAR
RESPONDENT/ RESPONDENT:
THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF COMMERCIAL TAXES, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
BY SENIOR GOVERNMENT PLEADER SRI.MOHAMMED RAFIQ.
THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON
25.11.2020, ALONG WITH S.T.Rev.NO.20/2020, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
S.T.Rev.19 & 20 of 2020 - 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE T.R.RAVI
WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942
S.T.Rev..No.20 OF 2020
AGAINST THE ORDER IN T.A.NO.49/2017 DATED 31-01-2020
OF KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH,
KOZHIKODE
[ASSESSMENT YEAR 2009-10]
REVISION PETITIONER/ APPELLANT/APPELLANT/ASSESSEE:
M/S.VYSAKH INTERNATIONAL HOTEL (P) LTD.,
PAYYANNUR, KANNUR.
BY ADV. SRI.RAJESH NAMBIAR
RESPONDENT/ RESPONDENT:
THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF COMMERCIAL TAXES, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
BY SENIOR GOVERNMENT PLEADER SRI.MOHAMMED RAFIQ.
THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON
25.11.2020, ALONG WITH ST.Rev.NO.19/2020, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
S.T.Rev.19 & 20 of 2020 - 3 -
K. Vinod Chandran & T.R.Ravi, JJ.
-------------------------------------
S.T.Rev.Nos.19 & 20 of 2020
------------------------------------
Dated, this the 25th day of November, 2020
ORDER
Vinod Chandran, J.
The revisions by the assessee are for the years 2009-10 and 2013-14.
2. For the year 2009-10, it is the submission of the learned Counsel for the assessee that the assessee was not apprised of the specific defects found by the Assessing Officer. On a reference to Annexure-A in S.T.Rev. No.20/2020, it is pointed out that one of the defects pointed out in the notice issued was the absence of Form 50A & 50B report. The assessee, in his reply, pointed out that the said reports have been filed; which were misplaced in the office of the Assessing Officer. The further defects alleged in the said statements were never put to the assessee and there is a clear violation of principles of natural justice.
3. We find from a reading of the order that though defects were noticed, there was no addition or estimation made on that count. Admittedly there was a penalty S.T.Rev.19 & 20 of 2020 - 4 -
proceeding pursuant to an inspection carried out in the premises of the assessee. The Intelligence Officer estimated the gross profit at 80%; which was found to be not possible in a penalty proceedings, by this Court. Though the estimation in penalty proceedings were set aside, it was specifically observed in the judgment of this Court that the defects noticed by the Intelligence Officer could be transmitted to the Assessing Officer, who could resort to a best judgment assessment. Based on the Crime file, the Assessing Officer also estimated the gross profit at 80%, which the Tribunal reduced to 50% as against the conceded gross profit of 38%. We do not find any question of law arising from the said decision of the Tribunal.
4. For the year 2013-14 [S.T.Rev.No.19 of 2020], the penalty imposed on turnover suppression was added to the total turnover along with an equivalent addition. There, the Tribunal found that the turnover suppression found in the penalty proceedings was on account of the revision of gross profit by the Intelligence Officer. Hence, there was no ground to make an equal addition, was the finding of the Tribunal. What was sustained was the turnover suppression detected on revision of gross profit, which again was at the rate of 50% as against the conceded gross profit of S.T.Rev.19 & 20 of 2020 - 5 -
40.82%. There is no question of law arising from that order of the Tribunal too.
We hence reject the revisions leaving the parties to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
T.R.RAVI JUDGE Vku/-
S.T.Rev.19 & 20 of 2020 - 6 -
APPENDIX OF S.T.Rev.NO.19/2020 PETITIONER'S/S ANNEXURES:
ANNEXURE A TRUE COPY OF THE REVISED ASSESSMENT ORDER FOR THE YEAR 2013-14 DATED 31.12.2016. ANNEXURE B TRUE COPY OF THE APPELLATE ORDER DATED 7.04.2018 DISMISSING THE APPEAL. ANNEXURE C TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 31.01.2020 IN T.A. 100/18.
S.T.Rev.19 & 20 of 2020 - 7 -
APPENDIX OF S.T.Rev.NO.20/2020 PETITIONER'S/S ANNEXURES:
ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2009-10 DATED 18.03.2015.
ANNEXURE B TRUE COPY OF THE MODIFIED ASSESSMENT ORDER FOR THE YEAR 2009-10 DATED 12.06.2016. ANNEXURE C TRUE COPY OF THE APPELLATE ORDER DATED 04.03.2017 MODIFYING THE ANNEXURE B ASSESSMENT ORDER.
ANNEXURE D TRUE COPY OF THE JUDGMENT DATED 08.12.2016 IN W.P.(C)NO.39046/2016.
ANNEXURE E TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 31.01.2020 IN T.A.49/2017.
[TRUE COPY]