IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 ST.Rev..No. 58 of 2009() ------------------------ TA.498/1994 of COMMR.KERALA AGR.IT & STAT,TVM. .................... REVISION PETITIONER/ASSESSE/APPELLANT --------------------------------------------------------- K.C.ABRAHAM,RICE & JAGGERY MERCHANT, CHALAI, TRIVANDRUM. BY ADV. SRI.E.P.GOVINDAN SRI.P.VISWAMBHARAN RESPONDENT(S): REVENUE/RESPONDENT --------------------------------- STATE OF KERALA REPRESENTED BY SECRETARY TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY G.P. SRI.MOHAMMED RAFIQ THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... S.T. Rev. No.58 of 2009 .................................................................... Dated this the 4th day of June, 2009. ORDER Ramachandran Nair, J. Revision is filed with inordinate delay of 3205 delays. The petitioner's explanation is that rectification application was filed and the same was pending before the Tribunal. Counsel has relied on order in the rectification application produced as Annexure-F which shows that rectification filed in 2000 was rejected only in 2009. He has further pointed out that during pendency of rectification application, stay was also granted by the Tribunal. Revision is filed against the original order of the Tribunal after rejection of rectification application. Even though delay is substantial, we feel petitioner is entitled to get the delay condoned because petitioner was agitating the matter before the Tribunal in rectification proceedings. Consequently we condone the delay. 2. The question raised in the revision is whether the petitioner is liable to pay turnover tax on the sales turnover of jaggery being 2 commission sales and rice being declared goods. On going through the Tribunal's order, we do not find the Tribunal has considered any of these grounds. However, counsel for the petitioner has referred to ground numbers 2,3 and 4 of the grounds of appeal filed for 1992-93 wherein petitioner has raised grounds pertaining to the turnover tax assessment on commission sales of jaggery and second sales turnover of rice. Even though counsel relied on Division Bench judgment of this court in ASST. COMMISSIONER V. ASSOCIATED CEMENT COMPANIES LTD. (1997(1) KLT 802), Government Pleader contended that the said decision does not entitle the petitioner for exemption on commission sales. Since the issue is not decided by the Tribunal on merits, these issues do not arise from the order of the Tribunal and consequently this court cannot consider the matter. However, since the Tribunal has not considered all the grounds of appeal raised by the petitioner in the appeal filed before it for the year 1992-93, we feel the order of the Tribunal is not tenable. However, since the appeal was partly allowed by the Tribunal in favour of the petitioner which is not contested by the State, we do not think there is 3 any justification to set aside the order of the Tribunal as such. We, therefore, set aside the order of the Tribunal in the appeal so far as it relates to the portion disposing the appeal, but by retaining the findings on other issues with direction to the Tribunal to consider the other grounds raised by the petitioner in the grounds of appeal filed which are not considered and decided in the original order, hear the petitioner and the State and decide the remaining issues raised in the appeal which were not considered and decided while issuing the impugned order. The Tribunal is directed to pass orders within three months from date of receipt of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms