Kerala High Court

Quality Hotels Pvt. Ltd vs The Commercial Tax Officer on 2 August, 2024

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

W.A.NO.1078/2024                  1



                                                   2024:KER:60102
              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
       THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                  &
             THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

   FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946

                         WA NO.1078 OF 2024
       AGAINST THE JUDGMENT DATED 29.05.2024 IN WP(C) NO.37956
                 OF 2015 OF HIGH COURT OF KERALA
APPELLANT:

         QUALITY HOTELS PVT. LTD.
         SOUTH CHALAKUDY, THRISSUR, PIN - 680307
         REPRESENTED BY ITS MANAGING DIRECTOR MR.HARISH.T.A.,
         AGED 50 YEARS, S/O.ASOKAN,

         BY ADV P.M.POULOSE
RESPONDENTS:

   1     THE COMMERCIAL TAX OFFICER
         CHALAKUDY (PRESENTLY STATE TAX OFFICER, TAX PAYER
         SERVICE CIRCLE, CHALAKUDY, THRISSUR), PIN - 680307

   2     THE DEPUTY COMMISSIONER
         DEPARTMENT OF COMMERCIAL TAXES, POOTHOLE,
         THRISSUR, PIN 680004 (PRESENTLY JOINT COMMISSIONER,
         TAX AND SERVICE, THRISSUR).

   3     THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX
         APPELLATE TRIBUNAL
         ADDITIONAL BENCH, PALAKKAD, PIN - 678004
         REPRESENTED BY ITS SECRETARY (PRESENTLY TRIBUNAL,
         KOZHIKODE).

         BY ADV.SMT.RESMITA RAMACHANDRAN, GOVERNMENT PLEADER

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.NO.1078/2024                      2



                                                           2024:KER:60102
                             JUDGMENT

Dated this the 2nd day of August, 2024

Syam Kumar V.M., J.

This appeal is filed challenging the judgment dated 29.05.2024

of the learned Single Judge in W.P.(C) No.37956/2015. Appellant was

the petitioner in the said W.P.(C).

2. Appellant, a Private Ltd. Company, which runs a bar hotel,

is an assessee under the KGST Act on the rolls of the 1 st respondent

Commercial Tax Officer, Chalakudy. Appellant had been assessed by the

Commercial Tax Officer for the assessment years 2007-2008 to 2010-

2011. The said assessment Order was challenged by the appellant

before the first Appellate Authority [Deputy Commissioner (Appeals)] by

filing four separate appeals. The said appeals were allowed by the first

Appellate Authority vide two different orders (Exts.P1 and P2) both

dated 10.02.2012. The said Orders of the first Appellate Authority were

challenged by the Department before the Sales Tax Appellate Tribunal,

Additional Bench, Palakkad, by filing a consolidated single appeal (T.A

No.50/2012). Subsequently, the Department, taking note of a defect in

the said filing, filed an application seeking to withdraw the appeal.

Pursuant to the same, T.A No.50/2012 was permitted to be ' dismissed as

withdrawn' by the Appellate Tribunal vide order dated 15.02.2013

2024:KER:60102 (Ext.P3). Noting that the said Order only spoke of a dismissal by

withdrawal and did not state that fresh appeals could be filed, the State

filed a rectification application No.8/15 against Ext.P3 order in

T.A.No.50/2012 whereby the earlier Order (Ext.P3) was reframed and

reworded as 'appeal stands withdrawn and the appeal filed is returned'

(vide Ext.P8 Order dated 11.09.2015). Consequently, the Department

filed four separate appeals before the Tribunal.

3. It is at this stage that the appellant preferred W.P.(C)

No.37956/2015 seeking a writ of prohibition restraining the Tribunal

from proceeding to hear the appeals stating that the same are not

maintainable for the reason that no permission had been granted to the

Department to file fresh appeals. He contends that the earlier Orders

(Ext.P3 and Ext.P8) had only stated that the appeals were ' dismissed as

withdrawn' and 'appeal stands withdrawn and the appeal filed is

returned' respectively. Since both the Orders did not specifically state

that liberty had been granted to the Department to file fresh appeals on

the same subject matter, according to the appellant, the separate

appeals now filed and pending consideration were hit by res judicata

and the same cannot be entertained by the Appellate Tribunal. Writ

Petition thus sought to restrain and prohibit the Tribunal from

considering the appeals and also a declaration that the appeals are not

maintainable.

2024:KER:60102

4. The learned Single Judge after perusal of Ext.P8 Order

came to the conclusion that a reading of the said Order of the Appellate

Tribunal allowing the rectification application clearly conveyed that the

Tribunal had intended to allow the Department to file fresh appeals. The

learned Single Judge also noted that the application that led to Ext. P3

Order was one seeking withdrawal of the irregularly filed appeal after

reserving the right to file fresh appeals. The learned Single Judge

further observed that in Ext.P8 Order, it had been specifically concluded

that the Tribunal had intended that the plea for withdrawing the appeal

was allowed, so as to enable the Department to file fresh appeal. That in

Ext. P8, it had been specifically stated that the wording in Ext. P3 was a

mistake apparent on the face of the records which was liable to be

rectified was also duly taken note of by the learned Single Judge. Thus,

pointing out that a hyper technical view of the words used in Ext.P8

could not be taken, the learned Single Judge declined the prayers sought

for and dismissed the Writ Petition. Aggrieved by such dismissal, the

appellant/ writ petitioner has preferred this Writ Appeal.

5. Heard Sri.P.M.Poulose, learned counsel appearing for the

appellant and Smt.Reshmitha Ramachandran, learned Government

Pleader appearing for the respondents.

6. It is contended by the learned counsel for the appellant that

the interpretation given by the learned Single Judge to Ext.P8 is

2024:KER:60102 erroneous in so far as the Order passed by the Tribunal does not

specifically state that liberty has been granted to the Department to file

fresh appeals. According to the learned counsel, nothing further was

required to reveal that filing of fresh appeals had been impliedly barred

by the Tribunal, than the fact that even after the filing of the

rectification application, the Tribunal in Ext.P8 Order did not specify

that fresh appeals could be filed and had only measuredly stated 'appeal

stands withdrawn and the appeal filed is returned' . Thus according to

the learned counsel, denial of right to file fresh appeals is a fact clearly

discernible from a reading of the said Order. Hence, according to him,

the interpretation of the learned Single Judge of Ext.P8 that the Tribunal

had intended to allow the Department to file fresh appeals is

unsustainable. He further contends that the principle of res judicata as

envisaged in Section 11 of C.P.C. is attracted and hence the second set

of appeals Exts.P4 to P7 cannot be maintained before the Tribunal.

7. Per contra, the learned Government Pleader for the

respondents submits that a reading of Ext.P8 would clearly reveal that

the Tribunal had specifically intended that the earlier appeals are

permitted to be withdrawn, so as to enable it to be followed up with

fresh appeals. In so far as the said reasoning is specifically stated in

Ext.P8 Order of the Tribunal, to contend that omission of the words

stating that the Department is permitted to file fresh appeals, is of no

2024:KER:60102 effect and consequence. The finding of the learned Single Judge that

mere absence of the said words would amount to a bar on filing fresh

appeals is a hyper technical contention, is fit proper and well founded.

The learned Government Pleader thus seeks dismissal of the Writ

Appeal.

8. We note that the learned Judge has bestowed close

attention to Ext.P8 Order of the Tribunal and had concluded that even

though Ext.P8 does not specifically state that the Department was given

liberty to file fresh appeals, a reading of the Order in its entirety

unequivocally reveals that the Tribunal had allowed the rectification

application to facilitate the State/its officials to file fresh appeals. The

learned Single Judge had also correctly taken note of the fact that the

application filed for withdrawal originally states that the appeal viz.,

T.A.No.50/2012 is being withdrawn to enable the State to file fresh

appeals after curing the irregularities/defects. The conclusion thus

arrived at by the learned Single Judge that, a hypertechnical view of the

words used in Ext.P8 cannot be taken to conclude that appeals filed as

T.A.Nos. 1/13, 2/13, 3/13 and 4/13 are not maintainable, is well founded

and valid. We concur with the said conclusion arrived at by the learned

Single Judge.

9. It has been further contended by the appellant that Exts.P4 to

P7 appeals are hit by res judicata in view of Section 11 of the Code of

2024:KER:60102 Civil Procedure. The applicability of the said principle to the facts and

circumstances of the case at hand and whether the doctrine of res

judicata in its full rigour is applicable in tax matters require

examination in the context of this contention raised by the appellant.

10. The jurisprudence on res judicata has been laid out in detail by

the Supreme Court in Jamia Masjid v. Sri. K.V.Rudrappa and others

[(2022) 9 SCC 225]. The ingredients to be fulfilled in order to attract

res judicata has been enumerated by the Supreme Court as follows:

"(i) The matter must have been directly and substantially in issue

in the former suit;

(ii) The matter must be heard and finally decided by the Court in

the former suit;

(iii) The former suit must be between the same parties or between

parties under whom they or any of them claim, litigating under the

same title; and

(iv) The Court in which the former suit was instituted is competent

to try the subsequent suit or the suit in which such issue has been

subsequently raised."

11. Subsequently in Prem Kishore and others v. Brahm

Prakash and others (2023 SCC OnLine SC 356), the Supreme Court

reiterated that to determine whether a suit is barred by res judicata, it is

necessary that the 'previous suit' is decided. It is thus trite that in the

2024:KER:60102 absence of an adjudication, the doctrine of res judicata would not be

attracted. Admittedly no adjudication has taken place on the appeals in

the case at hand. The merits of the matter still remain open and

undecided by the Tribunal. Thus the crucial ingredient for the

application of the doctrine of res judicata is totally lacking.

In view of the above, the contentions raised by the learned counsel

for the appellant cannot be sustained. Appeal fails and it is dismissed.

Sd/-