This Writ Petition is filed by the State Government, aggrieved by Ext. P4 order of the Appellate Tribunal which allowed a rectification application preferred by the assessee in connection with the KGST assessment for the year 2000-2001. The facts in the Writ Petition would disclose that the assessee had claimed exemption in respect of sale of washing soap under SRO 1090/1999. The said claim for exemption was, however, denied by the Assessing Officer while completing the assessment Vide Ext.P1 assessment order dated 30-5- 2003. In Ext. P1 assessment order the Assessing Authority also rejected the alternate claim of the assessee for taxing the washing soap sold by it at the concessional rate of 4% as per Entry 133 (i) of the I Schedule to the KGST Act as it stood during the relevant period. Aggrieved by Ext. P1 assessment order, the assessee preferred an appeal before the Deputy Commissioner (Appeals) and, on dismissal of the said appeal by Ext. P2 order dated 24-7-2005, a further appeal before the Appellate Tribunal. The second Appeal before the Appellate Tribunal was also dismissed by Ext. P3 order dated 18-8-2005. In the said order, the claim of the assessee in respect of the concessional rate of tax on the washing soap sold by it was rejected on the ground that the assessee had not produced any material to substantiate his contention that the washing soap was handmade. Subsequent to the dismissal of the Second Appeal, the assessee preferred a rectification application before the Appellate Tribunal. By Ext. P4 order dated 10-1-2008, the rectification application was allowed by the Tribunal after finding that the assessee had produced a letter dated 24-4-1990 of the Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board, addressed to the Secretary, Khadi and Village Industries Board, Thiruvananthapuram, which showed that the washing soap dealt with by the assessee, was manufactured by hand. Taking into account the said document, and finding that the assessee had already filed a copy of the said document before the Tribunal, the Tribunal rectified Ext. P3 order and allowed the Appeal preferred by the assessee by holding that the soap dealt with by the assessee was a handmade product and, therefore, it was liable to tax only at the rate of 4% under Entry 133 (i) of the I Schedule to the KGST Act. The assessing authority was directed to adopt the rate of tax on the turnover of soap at 4% instead of 12% that was adopted. As already noted, in the Writ Petition, the State Government impugns Ext. P4 order passed by the Appellate Tribunal.
2. I heard Smt. Lilly, the learned Government Pleader on behalf of the petitioner, State of Kerala. It is contended that the Appellate Tribunal could not, under the guise of rectifying an order passed earlier, review the same and grant relief to the assessee. It is further pointed out that the document, on which the assessee had placed reliance before the Appellate Tribunal, was since found to have been not received by the Kerala Khadi and Village Industries Board, Thiruvananthapuram, to which it was addressed. It is the contention, therefore, that in so far as the genuineness of the document itself was suspect, the Appellate Tribunal ought not to have relied on the same to grant the assessee the benefit that the assessee had claimed.
3. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find force in the contention of the learned Government Pleader that the Appellate Tribunal had placed reliance on a document submitted by the assessee without giving the Department an opportunity of examining whether the document was genuine or not. Ext.P5 letter produced by the petitioner in the Writ Petition would suggest that the Kerala Khadi and Village Industries Board, Thiruvananthapuram had not received the letter that was addressed to them, and on which the assessee placed reliance before the Appellate Tribunal. In that view of the matter, I quash Ext. P4 order of the Appellate Tribunal and direct the Appellate Tribunal to consider the rectification application preferred by the assessee afresh, after taking into account the contentions of the petitioner herein with regard to the genuineness of the document relied upon by the assessee. Thus, the Writ Petition is allowed by quashing Ext. P4 order and directing the appellate Tribunal to consider the rectification application preferred by the assessee afresh, after affording the parties an opportunity of being heard, within a period of three months from the date of receipt of a copy of this Judgment.
A.K.JAYASANKARAN NAMBIAR JUDGE ani/ xxx