IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 26 of 2009()
1. M/S.SOLAR CASHEW, KACHERI WARD, KOLLAM,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.S.SANTHOSH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :05/03/2009
O R D E R
C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ.
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S.T.Rev. NO: 26 OF 2009
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Dated this the 5th March, 2009.
JUDGMENT
RAMACHANDRAN NAIR, J.
The revision filed under Section 41(1) of the KGST Act as
against the order of the Tribunal rejecting the appeal for the reason
that the petitioner has not remitted admitted tax before filing the
appeal before the first appellate authority against whose orders
appeal was filed before the Tribunal.
2. We have heard counsel for the petitioner and Govt. Pleader
for the respondent and have gone through the order of the
Tribunal.
3. A revision is provided to this Court under Section 41(1) of
the KGST Act only against the orders of the Sales Tax Tribunal
passed under Section 39(4) or (7) of the Act. The order
contemplated under Section 39(4) is one issued on merits disposing
of the appeal by the Tribunal. The order under sub-section (7) of
Section 39 is an order in a review application filed before the
Tribunal by either party to review their order in appeal. In this case
the petitioner appears to have filed the appeal before the first
S.T.Revn. NO: 26/2009 2
appellate authority without payment of admitted tax. Consequently
the first appellate authority rejected the appeal as one not
maintainable by virtue of third proviso contained in Section 34(1) of
the Act. In fact under Section 39 no appeal is maintainable against
the order of the appellate authority declining to entertain an appeal
filed before him under Section 34(1) of the Act. When an appeal is
filed before the appellate authority, it is the duty of the appellate
authority to examine whether the appeal is maintainable which
requires verification of payment of tax admitted by the appellant. If
there is a dispute as to whether there is payment of admitted tax or
not it is for the appellate authority to adjudicate on the same for
the purpose of deciding on maintainability of the appeal. Strangely
no appeal is provided to the Tribunal or to any authority under the
statute against an order of the appellate authority declining to
entertain the appeal for the reason that there is non-payment of
admitted tax. Counsel for the petitioner submitted that this is a
case where the petitioner after admitting tax in the original return,
filed revised return disputing the tax originally admitted and so
much so there is a bonafide dispute about the payment of admitted
tax. Of course if the revised return is filed without any bonafides
S.T.Revn. NO: 26/2009 3
for the purpose of entertaining an appeal without payment of
admitted tax it is for the the appellate authority to decide as to
what is the admitted tax and give an opportunity to the assessee to
pay the same so that appeal on genuine disputes are entertained.
Strangely in spite of refusal of the appellate authority to pass an
adjudication order on the dispute raised by the petitioner about
payment of admitted tax, petitioner has not chosen to contest the
same other than by filing an appeal before the Tribunal which is not
maintainable because the Tribunal under Section 39(1) of the Act is
authorised to entertain an appeal against order passed by the
appellate authority disposing of the appeal on merits. When the
appeal is rejected by the appellate authority as one not
maintainable on account of non-payment of admitted tax such
order is not an order in appeal and, therefore, no further appeal will
lie to the Tribunal under Section 39(1) of the Act. Therefore, the
order issued by the Tribunal rejecting the appeal again on the
ground of non-payment of admitted tax is not an order under
Section 39(4) or (7) of the Act and so much so no revision will lie to
this Court against the said order of the Tribunal. Probably the
remedy that is available to the petitioner was to file a writ petition
S.T.Revn. NO: 26/2009 4
before this Court challenging the order of the appellate authority
rejecting the appeal. We therefore reject the revision as one not
maintainable under Section 41(1) of the Act.
C.N. RAMACHANDRAN NAIR
Judge
K. SURENDRA MOHAN
Judge
jj
K.K.DENESAN & V. RAMKUMAR, JJ.
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M.F.A.NO:
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JUDGMENT
Dated: