JUBILEE MISSION MEDICAL COLLEGE HOSPITAL vs. THE AGRICULTURAL INCOME TAX AND STATE TAX OFFICER

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942 WP(C).No.23194 OF 2020(Y) PETITIONER: JUBILEE MISSION MEDICAL COLLEGE HOSPITAL BISHOP ALPATT ROAD, PB NO. 737, THRISSUR - 680005, REPRESENTED BY ITS DIRECTOR, FR. FRANCIS PALLIKUNNATH. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SHRI.RAHUL A. SMT.APARNA ANIL RESPONDENTS: 1 THE AGRICULTURAL INCOME TAX AND STATE TAX OFFICER STATE GOODS AND SERVICE TAX DEPARTMENT, POOTHOLE, THRISSUR - 680004, 2 THE DEPUTY COMMISSIONER (APPEALS) STATE GOODS AND SERVICES TAX DEPARTMENT, POOTHOLE, THRISSUR, PIN - 680004, SR GP SRI C K GOVIND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.23194 OF 2020(Y) 2 JUDGMENT Dated this the 4th day of December 2020 Petitioner, a charitable institution is running a Medical College and a Multi – Specialty Hospital, registered under Section 12AA of the Income Tax Act, 1961 and also under Section 18C of the Kerala Value Added Tax Act, 2003. The petitioner has been purchasing medicines required for the hospital only from dealers who are paying tax at compounded rate on the MRP, in accordance with the provisions of Section 8 of the Act. Similarly, in the case of other consumer goods which are available in the State, only from the dealers after paying tax. But for use in the operation theater as well as in the intensive care units, liquid medical oxygen has to be supplied in order to protect the life of affected patients. In this manner the petitioner had been transporting liquid medical oxygen supplied by the dealers out side State duly supported by invoices issued by the suppliers. During the aforementioned process certain consignments of liquid medical oxygen were detained at the check post under the provisions of Section 47(2) of the KVAT Act, 2003 alleging WP(C).No.23194 OF 2020(Y) 3 attempt for evasion of tax or on the ground that the consignee was not a registered dealer. 2. Sri.Anil Kumar, learned counsel appearing on behalf of the petitioner submits that respondent conducted an enquiry under Section 47(5) and imposed the penalty as evidenced from series of documents Exts.P1 to P1(j). Petitioner preferred an appeal before the 2nd respondent which has been dismissed vide order Ext.P4. The controversy in the issue involved is already covered by the Division Bench judgment of Punjab-Hariyana High Courts in M/s Fortis Healthcare Limited And v. State of Punjab And Others 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]. Even the Full Bench of this Court has also held that such consignments providing liquid medical oxygen to the indoor patients during the course of treatment and purchase of the same from a dealer is not exigible under the KVAT Act. In support of the contention, relies upon the judgment of this Court in W.P(C).4150/20 and connected case, WP(C).No.23194 OF 2020(Y) 4 setting aside the penalty orders by relying upon the judgment referred to above. 3. The learned Government Pleader do not deny the factum of judgment rendered by me as well as the Full Bench of this Court and the Punjab-Hariyana High Court. He submits that against the Full Bench, an SLP is pending but there is no interim