2020 (9) TMI 217

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.... all further proceedings subsequent thereto and W.P. (C).No.4150/2020, claiming mandamus for deferring the assessment proceedings under Section 25 of the 2003 Act, before finalisation of the proceedings under Section 47(b). The facts and question of law to be decided, are, identical. 2. The petitioner, a Charitable Society running a cancer hospital under the name and style M/s Amala Cancer Hospital Society, Amala Nagar, Thrissur, is the holder of a registration under Section 12AA of the Income Tax Act 1961 for providing the inhouse medical facility to the various patients besides other facilities. They are also bringing the Liquid Medical Oxygen, relevant for consideration in this case, accompanied by Form 8F and 16, as required under th....

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....o the inter-hospitals ie, with regard to medical equipments etc., including the Liquid Medical Oxygen is no longer res integra in view of the judgment rendered by two Division Benches of Hon'ble Punajab-Hariyana High Courts in M/s Fortis Healthcare Limited And V. State Of Punjab And Others on on 23.01.2015 and M/s Hometrail Estate Pvt.Ltd V. The State Of Punjab & Anr on 27.08.2018 and Full Bench of this Court in Sanjose Parish Hospital v. Commercial Tax Officer [2019 (1) KLT 336]. 4. In order to buttress his arguments, the learned counsel also referred to the last proviso to Section 18(C), whereby the charitable hospitals are not mandatorily required to obtain registration and file returns under this Act. Liquid Medical Oxygen has been p....

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....r contra, the learned Government Pleader placed particular reliance on provisions of clause B of 18(C) introduced with effect from 01.04.2014 ie., the condition as envisaged in sub clause-I, providing that for availing the exemption, the purchase of the equipment or medicines has to be from the dealers registered under this Act. She submits that the consignors of the petitioner hospital is not registered under the Kerala Value Added Tax Act. The vehicle was intercepted and penalty were initiated and there is no embargo for the revenue to continue the escape assessment proceedings under Section 25 and after its culmination, by invoking section 67 as and when eventuality arises. During the course of the argument, the registration certificate ....

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....e B of Section 18(C) would be rendered otiose, as it only pertains to exemption with regard to the purchase of only medicines or with regard to the stores or consumables. The aforementioned provisions have also been referred to the judgment of Full Bench of have been negated and thus urge this Court for quashing of the penalty order. 9. Having heard both the parties and appraised the paper book and the judgment cited at bar I am the view of that, it is a fit case where the penalty order Ext.P6 to P16 are not sustainable on account of following reasons; 10. The issuance of a certificate under Section 12AA of the Income Tax Act for the relevant assessment year issued by the Deputy Commissioner of Commercial Taxes under the Kerala Value ....

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....evasion of tax is committed by the appellant in this case. 7. In the result, the appeal is allowed. Order accordingly." 11. In M/s Fortis Healthcare Limited (supra), the Division Bench of Punjab and Hariyana High Courts after noticing the provisions of Punjab Value Added Tax Act and as well as Power to Impose Sales Tax and VAT clause flowing from entry 54 of list to schedule 7 and Article 366 (29-A) of the Constitution of India did not accept the contention of the state for the applicability of doctrine of severance with regard to the services provided to the indoor patients involving medicines supply of surgical items, stents, implants valves with or without medical procedure or medical treatment. During all the aforementioned ....