Kerala High Court
Otis Elevator Company (India) Ltd vs The State Of Kerala on 9 November, 2018
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA,
1940
WP(C).No. 36426 of 2018
PETITIONER/S:
OTIS ELEVATOR COMPANY (INDIA) LTD.,
ANEKAL TALUK, BANGALORE - 560 105, REPRESENTED
BY ITS AREA HEAD - KERALA OPERATIONS MR.DEEPAK
SAKTHAR.
BY ADVS.
SRI.JOSEPH MARKOSE (SR.)
SRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SRI.P.G.CHANDAPILLAI ABRAHAM
SRI.V.ABRAHAM MARKOS
RESPONDENT/S:
1 THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO THE MINISTER OF
FINANCE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 STATE TAX OFFICER(ENQUIRY)
OFFICE OF DEPUTY COMMISSIONER, STATE GOODS AND
SERVICE TAX DEPARTMENT,THIRUVANANTHAPURAM-
695002.
3 ASSISTANT COMMISSIONER(ASSMT.)
WORKS CONTRACT,COMMERCIAL
TAXES,THIRUVANANTHAPURAM-695002.
OTHER PRESENT:
GP DR. THUSHARA JAMES.
-2-
W.P.(C). No. 36426 of 2018
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
JUDGMENT
The petitioner, dealing in elevators, enters into works contract with persons in State of Kerala and supplies the equipment. Later, its technical personnel stationed in Kerala assemble the elevators and render other related services. As it is an inter-state transaction, the petitioner pays the sales tax.
2. But earlier in 2015, the petitioner's consignments were subjected to detention. The authorities under the Kerala Value Added Tax Act insisted that the petitioner's transactions attract tax under the KVAT Act. On the petitioner's complaint, the Commissioner of Commercial Taxes intervened and issued Ext.P1 direction to the departmental officials not to detain the petitioner's consignments. By then, the petitioner suffered detention on seventeen occasions.
3. On all seventeen occasions, the petitioner provided bank guarantee and got the goods released. Recently, the second respondent passed the Ext.P9 to P20 orders to adjust the security -3- W.P.(C). No. 36426 of 2018 deposits the petitioner earlier furnished towards the penalty. Aggrieved, the petitioner has filed this writ petition.
4. The learned Senior Counsel has contended that the entire transaction falls beyond the mischief of the Kerala Value Added Tax Act. So, as it is an inter-state sale, the petitioner has already paid the sales tax as is evident from Ext.P4.
5. On the Exts.P9 to P20 orders under the KVAT Act, the learned Senior Counsel agrees that the petitioner has an alternative remedy. Yet he asserts that the second respondent lacks jurisdiction over the transaction and, therefore, those orders are nonest.
6. The Government Pleader, on the other hand, submits that once the petitioner has submitted itself to the jurisdiction of the third respondent; after suffering an adverse order, it cannot turn around and negate the whole process; it is estopped from questioning the second respondent's jurisdiction.
7. Heard the learned Senior Counsel appearing for the petitioner and the learned Government Pleader for the respondents.
8. I reckon it is not a question of the second respondent's inherently lacking the jurisdiction --the subject matter jurisdiction. -4- W.P.(C). No. 36426 of 2018 The authority may have decided erroneously, if at all. Then the petitioner's remedy lies under Section 57 of the Act. In this context, the learned Senior Counsel has nevertheless submitted that before the petitioner could approach the revision authority, the respondent authorities will encash the Bank guarantee to the petitioner's prejudice. I reckon there is force in his contention.
Under these circumstances, without adverting to the merits, I dispose of the writ petition, holding that the petitioner is free to invoke Section 57, or any other statutory provision, to seek redressal against the Ext.P9 to P20 orders. But as the petitioner has bona fide approached this Court, and now its approaching the revision authority may take some time; it serves the interest of justice if the petitioner is provided breathing time. Therefore, the authorities will defer encashing the bank guarantee for two months.
Sd/-
DAMA SESHADRI NAIDU JUDGE das -5- W.P.(C). No. 36426 of 2018 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF ORDER NO.C2-16483/16/CT DATED 10/06/2016 ISSUED BY THE DEPUTY COMMISSIONER(GENERAL)OF THE COMMERCIAL TAXES,THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF PURCHASE ORDER DATED 30/12/2014 RECEIVED FROM MECRY HOSTIPAL AND NURSING COLLEGE,THIRUVANANTHAPURAM EXHIBIT P3 TRUE COPY OF THE WAY BILL NO.13/0TI-
0216/15 DATED 20/07/2015 EXHIBIT P4 TRUE COPY OF THE SALES TAX VALUE CUM DELIVERY CHALLAN DATED 16/07/2015.
EXHIBIT P5 TRUE COPY OF E-CONSIGNMENT DECLARATION IN FORM NO.8F DATED 20.07.2015.
EXHIBIT P6 TRUE COPY OF DECLARATION DATED 18/07/2015 FROM THE CONSIGNEE.
EXHIBIT P7 TRUE COPY OF NOTICE NO.VC/III/15- 16/2012 DATED 22/07/2015 UNDER SECTION 47(2)OF THE KVAT ACT,2003.
EXHIBIT P8 TRUE COPY OF OBJECTIONS DATED 20/07/2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF ORDER NO.CTET.B4-224/15- 16 ISSUED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF ORDER NO.CTET.B4-398/15- 16 DATED 28/09/2018 ISSUED BY THE 2ND RESPONDENT.-6- W.P.(C). No. 36426 of 2018
EXHIBIT P11 TRUE COPY OF ORDER NO.CTET.B4-1763/15- 16 DATED 26/09/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF ORDER NO.CTET.B4-306/15- 16 DATED 28/09/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF ORDER NO.CTET.B4-383/15- 16 DATED 28/09/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P14 TRUE COPY OF ORDER NO.CTET.B4-839/14- 15 DATED 26/09/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF ORDER NO.CTET.B4-993/14- 15 DATED 31/08/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P16 TRUE COPY OF ORDER NO.CTET.B4-527/14- 15 DATED 27/09/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P17 TRUE COPY OF ORDER NO.CTET.B4-528/14- 15 DATED 28/09/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P18 TRUE COPY OF ORDER NO.CTET.B4-76/15-16 DATED 26/10/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P19 TRUE COPY OF ORDER NO.CTET.B4-400/15- 16 DATED 26/10/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P20 TRUE COPY OF ORDER NO.CTET.B4-526/14- 15 DATED 31/08/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P21 TRUE COPY OF LETTER NO.CTET-B4- 526/14/15 DTAED 20/10/2018 ISSUED BY THE 2ND RESPONDENT TO THE MANAGER,HDFC BANK,COCHIN.
-7-W.P.(C). No. 36426 of 2018