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Case Law Details

Case Name : State of Kerala Vs Sreevalsam Residency (Kerala High Court)
Appeal Number : RP No. 81 of 2024
Date of Judgement/Order : 05/02/2024
Related Assessment Year :

State of Kerala Vs Sreevalsam Residency (Kerala High Court)

The Kerala High Court recently dismissed a review petition related to sales tax exemption for Bar Attached Hotels and Shops. The court’s judgment, dated 30.11.2023, had addressed issues concerning turnover tax during the Covid lockdown period. This article provides an in-depth analysis of the review petition, the court’s initial decision, and the arguments presented by both parties.

The review petition sought reconsideration of the judgment dated 30.11.2023 in W.P.(C) No. 32408 of 2023 and connected matters. The court had earlier ruled that Bar Attached Hotels with FL3 licenses, filing returns by 31.03.2022, and clearing turnover tax by 30.04.2022, for the periods from 22.05.2020 to 21.12.2020 and 15.06.2021 to 25.09.2021, would not be liable to pay interest on delayed filing.

The Special Government Pleader argued that an error apparent on the face of the record necessitated a review. It was contended that the reduction of tax from 10% to 5% applied beyond the Covid lockdown period, and taxpayers could have claimed a refund of the 5% tax, making them liable for interest on delayed tax payment.

The respondents, however, emphasized the specificity of the Cabinet Note and subsequent decision, asserting that Bar Attached Hotels and Shops were required to pay 5% of the turnover tax during the specified Covid lockdown periods.

The court, after considering the submissions and documents, found no error apparent on the face of the record. It upheld its earlier judgment, stating that the documents presented were not part of the original pleadings and that review jurisdiction should be exercised in a limited manner.

The Kerala High Court’s dismissal of the review petition maintains the judgment on sales tax exemption for Bar Attached Hotels and Shops. The court, in its considered decision, emphasized the specificity of the Cabinet Note and the lack of apparent errors in the record. This dismissal reinforces the finality of the court’s initial ruling and underscores the principle of limited review jurisdiction.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

1. Heard Mr. A. Muhammed Rafiq, learned Special Government Pleader for the review petitioners and the learned Counsel appearing for the respondents.

2. These review petitions have been filed seeking review of the Judgment and Order dated 30.11.2023 passed in the batch of writ petitions including W.P.(C) No. 32408 of 2023.

3. This Court after hearing the learned Counsel appearing for the parties, vide the final Judgment and Order under review, held that in cases where the return were filed on or before 31.03.2022 and turnover tax was cleared on or before 30.04.2022 by the FL3 lincencees, for the period from 22.05.2020 to 21.12.2020 and from 15.06.2021 to 25.09.2021 for the financial years 2020-21 and 2021-22, they would not be liable to pay interest for delayed filing of the returns and payment of turnover tax @ 5% on their parcel sales authorised by the Government during the Covid lock down period. This Court considered all the documents which were placed on record and the submissions of both sides.

4.  Mr. A. Muhammed Rafiq, learned Special Government Pleader, however submits that there has occurred an error apparent on the face of the record which occasioned the review petitioners to seek review of the Judgment and Order dated 30.11.2023 passed by this Court. He further submits that the reduction of tax from 10% to 5% was not limited only in respect of the sale effected by the Bar attached Hotels during the Covid lock down period but, the exemption was granted for the period from 2014-15 to 2015-16 as per the Cabinet Note placed on record as Annexure (A) by which the decision was taken to amend Section 7A of the Kerala General Sales Tax Act, 1963. The exemption from payment of tax up to 5% by the Bar attached Hotels on their parcel sales, would not mean that they were not required to pay the tax @ 10%, but they could have claimed refund of the 5% tax and, therefore, they were liable to pay the interest on delayed payment of turnover tax. He further submits that the proposal to reduce the tax from 10% to 5% in the cabinet decision has to be considered in that respect. Mr. A. Muhammed Rafiq has also placed reliance on Annexure (B) of the review petition which is the decision of the Cabinet. Relevant portion of Annexure (B) reads as under;

“Decision : Proposal (1) of Note accepted.

(2) the suggestion in the note was considered. It has been decided to extend the time for filing of the returns till March 31, 2022 and till April 30, 2022 for payment of arrears.”

5. On the other hand, the learned Counsel appearing for the respondents submits that the Annexure (A) document placed on record i.e. the note put up before the Cabinet for consideration regarding the reduction of turnover tax for the period during lock down from 22.05.2020 to 21.12.2020 and from 15.06.2021 to 25.09.2021 is specific that the Bar attached Hotels and shops were required to pay 5% of the turnover tax as is applicable in respect of the retail outlets run by the Beverages Corporation. In pursuance to the said cabinet note, the cabinet has taken the decision and, thereafter, Exhibit P-2 was issued notifying the rate of turnover tax.

5.1. Once the notification was issued, the respondents herein have remitted the tax, as per the time extended for filing the return and remittance of tax. This Court has considered every aspect of the matter, the submissions and documents placed on record. There is no error apparent on the face of the record which requires this Court to review its well considered Judgment dated 30.11.2023 in W.P.(C) No. 32408 of 2023 and connected matters.

6. I have considered the submissions. Review jurisdiction is to be exercised in a very limited manner where there is an error apparent on the face of the record. This Court has considered each and every document and the submissions while rendering the Judgment dated 30.11.2023 in W.P.(C) No. 23969 of 2023 and connected matters. Furthermore, these documents were not part of the pleadings. Review does not mean rehearing or appeal. There has to be finality to a litigation. This Court, based on the submissions, documents and evidences, has rendered the Judgment sought to be reviewed. Therefore, I find no error apparent on the face of the record which warrants this Court to reconsider this Judgment under review. There is no substance in these review petitions and the same are hereby dismissed.

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