IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 ST.Rev..No. 31 of 2007() ------------------------ TA.558/2003 of S.T.A.T., ADDL.BENCH-II, ERNAKULAM .................... PETITIONER/APPELLANT IN T.A./ASSESSEE --------------------------------------------------------- HARISSONS MALAYALAM LIMITED, WILLINGDON LSLAND, KOCHI 682 003, REPRESENTED BY ITS COMPANY SECRETARY, MR.P.A.KRISHNAMOORTHY. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR RESPONDENT(S): RESPONDENT IN T.A. --------------------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY TAXES DEPARTMENT, THIRUVANANTHAPURAM. BY SPL.G.P.SRI.VINOD CHANDRAN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ---------------------------------------- Sales Tax Revision No.31 of 2007 ---------------------------------------- Dated this the 1st day of July, 2010 ORDER J.Chelameswar, C.J. This is a revision against an order passed by the Tribunal under the Kerala General Sales Tax Act. The petitioner, a limited company, was assessed under the provisions of the Kerala General Sales Tax Act for the year 1993-94 by an order dated 9.9.2002. For the said assessment year, the petitioner filed a return declaring a total turnover of approximately Rs.98 crores and claimed that an amount of approximately Rs.92 crores of the above total turnover is liable to be exempted from the tax liability under the Kerala General Sales Tax Act on various grounds and submitted a taxable turnover of Rs.5,83,79,388.36 for assessment. On the other hand, the assessing authority determined the taxable turnover as Rs.11,03,02,890/-. By the assessment order, the assessing authority detailed the various claims of exemption under different heads and recorded the reasons for allowing or disallowing the said claims. 2. One of the claims made by the assessee is that certain amount of purchase turnover under the head `miscellaneous stores' which according to the assessee was eventually exported out of India STR.No.31/2007 2 and therefore not liable to tax under the Kerala General Sales Tax Act. Such a claim was disallowed on the ground that the exports are not proved before the assessing authority. Aggrieved by the said assessment order, the assessee carried the matter in appeal before the Deputy Commissioner (Appeals)-I, Commercial Taxes, Ernakulam. By the order dated 20th March, 2003 the appeal of the assessee was partly allowed. However, the claim of the assessee with regard to the export sales of `miscellaneous stores' referred to earlier was still not accepted by the appellate authority. The assessee therefore carried the matter in a further appeal before the Kerala Sales Tax Appellate Tribunal, Ernakulam. The Tribunal by its order dated 16th May, 2005, confirmed the concurrent finding of the assessing authority and the first appellate authority that the claim of the assessee with regard to the `miscellaneous stores' is not sustainable and hence the revision. 3. All the three authorities below, the assessing authority, the first appellate authority and the Tribunal, concurrently held that the assessee failed to establish the fact that the goods (miscellaneous stores) purchased by him within the State of Kerala are eventually exported out of the country and therefore the assessee is not entitled for any benefit on account of such export activities. The finding of STR.No.31/2007 3 the Appellate Tribunal in this regard is as follows: “5. The next point raised by the assessee is that the assessing authority went wrong in estimating and making an addition on the purchase turnover of goods exported on the ground that the corresponding purchases were from unregistered dealers. According to the appellant, the purchases were effected from registered dealers within the State. Hence there is no liability to be assessed U/s.5A of the KGST Act. Even though such a contention has been raised before the first appellate authority also, no evidence or supporting documents are seen filed either before the first appellate authority or before this Tribunal. In the absence of supporting documents we are not in a position to accept the contention of the appellant, hence rejected.” We notice that there is no consistency in the stand taken by the assessee. Obviously it kept changing from stage to stage. It appears from the materials before us that the case of the assessee before the assessing authority is that the purchase turnover under the head `miscellaneous stores' is to be exempted from the liability of tax under the Kerala General Sales Tax Act on the ground that such goods were eventually exported out of India. The assessing authority rejected the claim on the ground that no proof of the export is placed before the assessing authority. However, at the time when the matter reached the Appellate Tribunal, it appears from the above extracted portion of the Tribunal's order that the assessee argued that the goods exported were purchased from a registered dealer in STR.No.31/2007 4 the State of Kerala and therefore there is no liability to be assessed under Section 5A of the Kerala General Sales Tax Act. Section 5A stipulates the levy on the purchase of goods in certain circumstances specified under the said section, the details of which may not be necessary for the present case. The Tribunal rejected the said claim on the ground that though such a contention is raised, no evidence or supporting documents are filed either before the first appellate authority or before the Tribunal. It is in the background of the above mentioned confusion in the factual state of affairs that the instant revision is filed before this Court. According to the memorandum of revision petition, the following questions of law arise for the consideration of this Court: “Questions of law raised for decision by the High Court:- i) Whether in the facts and circumstances of the case the Hon'ble Tribunal was right in law in confirming the demand of tax under Section 5A of the Act? ii) Ought not the tribunal have held that the conditions for imposing tax under Section 5A have not been satisfied and therefore the assessment was bad?” We only regret to state that the questions raised by the petitioner are neither questions of law nor there is any precision in the pleading delineating the context of the dispute. We are of the STR.No.31/2007 5 opinion that the instant revision is only an abuse of process of the Court and the same is dismissed with costs quantified at Rs.5,000/- which the State will be entitled to recover along with the tax. J.CHELAMESWAR Chief Justice P.N.RAVINDRAN Judge TKS