State of Kerala vs Leo Hospital

K.M. Joseph, J.—The petitioner is the State of Kerala. The respondent-asses see is a hospital. It purchased one DXICT Scanner with accessories from M/s. Wipro GE Health Gare Pvt. Company, Bangalore . The same was transported in Vehicle bearing No. KA.02 AA/5414 through Commercial Taxes, Checkpost, Muthanga on the strength of Form 16 (certificate of ownership). Notice was issued under S. 47(2) of the Kerala Value Added Tax Act (hereinafter referred to as the ''K.V.A.T. Act'') by the Commercial Tax Inspector suspecting genuineness of transaction. Enquiry was conducted. The officer found that the goods were purchased for commercial purposes, but it is declared as own use. Penalty under S. 70(B) of the K.V.A.T. Act was imposed. Purporting to act under S. 70(B) of the K.V.A.T. Act, the first Appellate Authority overturned the order, in the appeal filed by the assessee. The order of the first Appellate Authority has been confirmed by the Tribunal in the appeal filed by the State. It is the said order which is called in question. We heard the learned Government Pleader. The learned Government Pleader drew our attention to S. 70(B) of the K.V.A.T. Act, which reads as follows:

70B. Penalty for commercial use of goods brought from outside the State declaring it as for own use:- Any person bringing goods from outside the State declaring it as for own use and has used the goods so brought otherwise than for own use, shall, without prejudice to any other provisions in this Act, be liable to pay by way of penalty, an amount not exceeding thrice the amount of tax due on such goods.

According to the learned Government Pleader, goods were procured and it has been transported on the strength of Form 16 declaring that the goods which were transported were purchased for own use. When the respondent-assessee which is a hospital uses the goods brought from outside the State, declaring it as for own use, for commercial purposes arid makes profit, it attracts S. 70B because the word ''commercial'' is mentioned in the heading.

We are not impressed by the said argument of the Government Pleader. What S. 70B contemplates is that any person bringing goods from outside the State projecting the purchase as one for its own use and utilising the goods so brought otherwise than for own use shall, without prejudice to any other provisions in the Act, be liable to pay by way of penalty. In this case it is noteworthy that the assessee is admittedly a hospital. The assessee has procured goods, no doubt, giving declaration under Form 16. The fact that the declaration given under Form 16, in our view, would not have any bearing on the decision rendered in this case. It is not a case as if the respondent assessee after giving such declaration and after bringing goods in the State has not used them for its own use. The fact, that when the person make use of the goods it may generate profit, will not detract from the use being its own use though the word ''commercial'' figures in the heading of S. 70B. What is required for attracting S. 70B is bringing goods from outside the State declaring it for own use, but not using it for own use. It means that when the person brings the goods declaring it for own use, but he sells or otherwise alienates/transfers the goods, it could be said that the goods are not being used for its own use. But, in this case the assessee hospital is using the purchased goods for its own purposes.

In such circumstances, we see no reason to take different view than the view taken by the first Appellate Authority and as affirmed by the Tribunal. The revision will stand dismissed.