Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN & THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 4TH DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 RP NO. 189 OF 2022 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.12528 OF 2012 OF HIGH COURT OF KERALA REVIEW PETITIONER:
HOTEL LAKEVIEW AND THRIPTHI BAR REPRESENTED BY ITS MANAGING PARTNER D. RAJEEV THOPPIL KADAVU, KOLLAM, PIN - 691001 BY ADVS.
JOSE JONES JOSEPH A.SUDHI VASUDEVAN (SR.)
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001 2 DEPUTY COMMISSIONER OF STATE TAX STATE GST DEPARTMENT, SPECIAL CIRCLE, TAX TOWER ASRAMAM P.O, KOLLAM, PIN – 691002 (FORMERLY KNOWN AS COMMERCIAL TAX OFFICER, SPECIAL CIRCLE, KOLLAM) 3 INSPECTING ASSISTANT COMMISSIONER STATE GST DEPARTMENT TAX DEPARTMENT, TAX TOWERS ASRAMAM P.O, KOLLAM, PIN – 691002 (FORMERLY KNOWN AS INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES OFFICE, KOLLAM) SRI.MOHAMMED RAFIZ, SPL.GP SRI.P.R.SREEJITH, SC THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RP NO. 189 OF 2022 2 JUDGMENT Dated this the 4th day of March, 2024 Anu Sivaraman, J.
Heard the learned counsel appearing for the review petitioner and the learned Special Government Pleader.
2.
It is submitted by the learned counsel for the review petitioner that the issue with regard to the constitutional validity of the amendment brought to Section 7 of the Kerala General Sales Tax Act, 1963 (hereinafter referred as 'the Act') by the Finance Act, 2006 was under consideration in the writ petitions. The constitutional validity of the amendment was upheld and the questions raised were whether Section 7(b) of the Act introduced on 24.10.2006 with retrospective effect from 01.07.2006 could be applied to those dealers who had contracted for payment of turnover tax at the compounded rate (by way of the alternate method of taxation provided for), under the unamended Section 7 of the Act for the assessment year 2006-07 and whether Section 7(a) and 7(b) of the Act operate in different spheres and if not, would the said amended provision violate Article 14 and
RP NO. 189 OF 2022 3 Article 19(1)(g) of the Constitution of India as contended in the writ petition?
3.
It is submitted that the 1st question was answered in the affirmative while the 2nd question was answered in the negative by the Division Bench of this Court. However, later, review petitions were filed seeking permission to opt under the compounding scheme and to pay tax accordingly or to opt out of the compounding scheme and to pay tax under the normal rates as provided under Section 5(2) of the Act. By Annexures A2 and A3 orders, the review petitions filed by similarly situated assessees had been allowed and permission was granted to opt for the compounding scheme and to pay tax accordingly or to opt out of the compounding scheme within a month and to pay tax under the normal rates as provided under Section 5(2) of the Act.
The learned counsel for the review petitioner submits that the review petitioner is also an identically situated assessee and is seeking only the very same reliefs.
4.
The learned Special Government Pleader appearing for the respondents in the review petition would contend that the question
RP NO. 189 OF 2022 4 with regard to the constitutional validity of the amendment as well as the mode of assessment having been settled by the judgment under review, there can be no reopening of any of those questions by this review petition. It is further stated that even if a chance for option is to be provided to the assessee, it can only be with respect to the whole of the assessment year 2006-2007 since the amended provision was very much in the statute book in respect of the subsequent assessment years. It is contended that the writ petition filed by the review petitioner related to the subsequent assessment years as well and therefore it has to be clarified that the chance for option to either be governed by the provisions of the compounding as amended by the Finance Act of 2006 or to pay tax under the normal rates as provided under Section 5(2) of the Act would arise only with regard to the assessment year 2006-2007.
5.
Having considered the contentions advanced, we notice that Annexure A2 order in review was in respect of an assessee who was almost identically situated as the review petitioner herein. This Court in paragraph No.5 of Annexure A2 had considered the objections
RP NO. 189 OF 2022 5 raised by the Government Pleader and had held that the benefit of the order in the earlier review petitions can be extended to persons who had approached the court only after remand by the honourable Supreme Court, as well.
6.
In the above view of the matter, we are of the opinion that this review petition is also liable to be allowed to the limited extent of granting an opportunity to the review petitioner either to opt for the compounding scheme and to pay tax accordingly or to opt out of the compounding scheme within one month from today and to pay tax under the normal rates as provided under Section 5(2) of the Act. It is made clear that the option as permitted above shall be only in respect of the whole of the assessment year 2006-2007.
This review petition is ordered accordingly.
Sd/- ANU SIVARAMAN, JUDGE Sd/- C. PRATHEEP KUMAR, JUDGE NP
RP NO. 189 OF 2022 6 APPENDIX OF RP 189/2022 PETITIONER'S ANNEXURES Annexure A1 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 06.02.2022 ISSUED TO D. RAJEEV BY DR. D SUJITH REFERRED TO THEREIN Annexure A2 A TRUE COPY OF THE COMMON ORDER DATED 08.11.2019 PASSED BY THIS HON'BLE COURT IN RP 848/2019 IN WP (C) 11593/2012 AND RP 849/2019 IN WP (C) 11637/2012 Annexure A3 A TRUE COPY OF THE COMMON ORDER DATED 24.07.2019 PASSED BY THIS HON'BLE COURT IN RP NO. 231/2018 IN WP(C) 25089/2013, RP NO.
224/2018 IN WP(C) 11694/2011, RP NO. 636/2018 IN WP(C) 8577/2014 AND RP NO. 679/2018 IN WA NO. 1861/2007 RESPONDENTS' ANNEXURES: NIL