Carborandum Universal Ltd vs The Commissioner
2021 Latest Caselaw 14826 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                     THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                        &
             THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                            OT.APPEAL NO. 1 OF 2021
APPELLANT:

             M/S CARBORANDUM UNIVERSAL LTD
             P.B.NO.1,KALAMASSERY DEV.PLOT,KALAMASSERY,
             REPRESENTED BY ITS AUTHORISED SIGNATORY
             SRI.VISHNUPRASAD.
             BY ADVS.
             A.KUMAR
             P.J.ANILKUMAR
             G.MINI(1748)
             P.S.SREE PRASAD
             JOB ABRAHAM
             AJAY V.ANAND


RESPONDENTS:

    1        THE COMMISSIONER
             STATE GOODS AND SERVICE TAX DEPARTMENT,
             TRIVANDRUM-695001.
    2        DEPUTY COMMISSIONER
             SPECIAL CIRCLE III,STATE GOODS AND SERVICES TAX
             DEPARTMENT,ERNAKULAM-682015.
             BY SR.GOVERNMENT PLEADER MOHAMMED RAFIQ



    THIS     OTHER    TAX   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.T.Appeal No.1 of 2021          2




                                     JUDGMENT

S.V.Bhatti, J.

This O.TAppeal is filed under Section 62(1) of Kerala Value

Added Tax Act, 2003, by M/s Carborandum Universal Ltd. (for

short 'assessee'). The assessee prays for setting aside Annexure-II

Order bearing No.C3/5444/16/CT dated 13.4.2016 and

consequently set aside Annexure-I assessment order dated

29.3.2021.

2. The assessee claims that the second respondent, by

referring to or by keeping in perspective the order dated 13.4.2016

in Annexure-II, has made the assessment to the prejudice of

assessee, particularly, with regard to the stock transferred by the

assessee from one depot to another depot. The assessee further

alleges that Annexure-II is questioned before this Court in

O.T.Appeal No.9/2016 and this Court granted stay of operation of

Annexure-II. Annexure-II, hence could not have been the basis vis-

à-vis the assessment in Annexure-I for any purpose. Therefore, the

assessee prays for the reliefs referred to above.

3. Learned Senior Government Pleader Mr.Mohammed Rafiq,

by inviting our attention to the tenor of Annexure-I, argues that the

O.T.Appeal, at this juncture, is misconceived and Annexure-I does

not in terms refer to Annexure II order. With a view to specifically

understand the case of respondents, we have given time to the

respondents to file statement to the extent indicated above.

4. The statement filed by the Senior Government Pleader is

excerpted hereunder:

" The above appeal has been filed under Section 62(1) of the Kerala Value Added Tax Act, 2003, challenging the Annexure-II clarification order bearing No.C3.5444/2016/CT dated 13.04.2016 passed by the Authority for Clarification, under Section 94 of the Kerala Value Added Tax Act. The appellant herein was not a party to the said proceedings. The cause of action as asserted by the appellant to challenge the clarification order is that the 2nd respondent assessing authority has passed the Annexure-I assessment order keeping in mind the principles laid down in the impugned order. However, in the annexure-I order there is no reference as to the order impugned herein. In fact, the impugned clarification order is already under challenge in OTA No.9 of 2016 before this Hon'ble Court as maintained by the very applicant in the said clarification proceedings.

It is submitted that the issue clarified in the impugned order is with regard to separate treatment of different places of business of a dealer for the purpose of levy, assessment and collection of

tax and filing of return in cases where separate registration has been obtained for such units on application to the commissioner under Section 20(3) of the Act. The clarification order specifically refers to registration of applicant's units under the said provision. The Authority for Clarification has made a distinction between the principle that there is no seller and there is no seller and there is no buyer as goods are passed only between the same entity" as laid down by this Hon'ble court in Govt. Wood Workshop v State of Kerala reported in (1998) 69 STC 62 and cases where separate registrations were granted in terms of Section 20(3) of the Act, considering applications made to the commissioner. Since separate registration of different business places in the case of the appellant herein were affected not under Section 20(3) of the Act, the appellant could not have any grievance against the order impugned and therefore they have no locus standi to maintain an appeal under Section 62(1) of the Act against the same.

Facts of the case would reveal that the disputed turnover relates to goods moved by the appellant claiming to be a movement otherwise than by way of sale. In the pre-assessment notice the assessing authority sought to treat the said turnover as local sales in the absence of departmental delivery notes. In the reply, the appellant has taken the stand that the goods were moved by way of local stock transfer to another unit of the appellant. They neither produced a departmental delivery note nor any other document before the officer to substantiate the claim. Later, the assessing authority confirmed the proposals holding that since the transaction is between two units having different registration numbers, transfer among such units can only be treated as sale. If the appellant feels aggrieved by the said order, they ought to

have worked out their remedies as provided in the Act itself instead of filing this appeal challenging a clarification order passed in a different context and asking for stay of operation of the said assessment order."

The statement is placed on record and thereby there is no need

for further consideration of the prayers made in the appeal. Hence

O.T.Appeal stands disposed of by granting liberty to the assessee to

work out remedies against Annexure-I assessment order in

accordance with law.

sd/-S.V.BHATTI JUDGE

sd/-BECHU KURIAN THOMAS JUDGE

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APPENDIX OF OT.APPEAL 1/2021

PETITIONER'S ANNEXURE Annexure I TRUE COPY OF THE ASSESSMENT ORDER DATED 29/03/2021 PASSED BY THE 2ND RESPONDENT Annexure II TRUE COPY OF THE CLARIFICATION ORDER NO.C4/5444/2016/CT DATED 13/04/2016. Annexure III TRUE COPY OF THE INTERIM ORDER IN OTA NO.9/2016 DATED 15/06/2016