Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 15TH DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 WP(C) NO. 27382 OF 2022 PETITIONER:
M/S. IBUS NETWORK AND INFRASTRUCTURE PRIVATE LIMITED D. NO. 46/1935, THOMAS HERITAGE, VAKKATTU ROAD, BEHIND HOLIDAY INN, VENNALA, CHAKKARAPRAMBU, KOCHI - 682 032, REPRESENTED BY ITS CHIEF FINANCE OFFICER, HEERA GIRISH.
BY ADVS.
HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENTS:
1 THE STATE TAX OFFICER 1ST CIRCLE, STATE GST DEPARTMENT THRIPUNITHURA – 682301.
2 THE COMMISSIONER OF COMMERCIAL TAXES TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM – 695002.
3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM – 695001 DR. THUSHARA JAMES, SR.GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 27382 OF 2022 2 T.R. RAVI, J.
-------------------------------------------- W.P.(C) No.27382 of 2022 -------------------------------------------- Dated this the 15th day of February, 2023 JUDGMENT The prayer in the writ petition is to quash Ext.P8 order issued by the 1st respondent. By Ext.P8 order the application for revision of returns submitted by the assessee was rejected stating that it has been filed beyond the last date fixed by the Principal Secretary and Commissioner of State Goods and Services Tax Department, Government of Kerala. The petitioner had relied on Ext.P7 judgment issued by this Court and placed the same before the 1st respondent. It is held in Ext.P7 that the prohibition or interdiction against revising the returns by a genuine assessee, whose revision of returns will not create any tax implication either on the assessee or on the department should not be rejected based on such strict time limit. The learned Judge for coming to the said conclusion, had relied on the decision of this Court in Commercial Tax Officer v.
WP(C) NO. 27382 OF 2022 3 Varghese (2018 (3) KLT 468). In Ext.P8, the officer has referred to the judgment Ext.P7 and stated that the said judgment is not general in nature and is specific to the dealer, who had approached the Court and hence cannot be treated as binding in so far as the present case is concerned.
2.
The Senior Government Pleader submitted that the officer has only gone by the statutory provisions for rejecting application.
3.
Having heard the counsel for the petitioner and the Senior Government Pleader and having gone through Ext.P7 judgment, I am of the opinion that the judgment cannot be treated as one which applies only to the petitioner therein. The conclusion in paragraph 9 of the judgment is that despite the amendment brought in by the Kerala Finance Act, 2002 prohibition or interdiction against revising the returns by a genuine assessee, whose revision of returns will not create any tax implication either on the assessee or on the department ought not to be rejected based on such strict time limit “cannot
WP(C) NO. 27382 OF 2022 4 be treated as an observation which is not general in character”.
The said observation is a declaration of law as far all assessees who fall within the descriptions stated in the judgment are concerned.
In the above circumstances, this writ petition is allowed.
Ext.P8 is set aside. The 1st respondent is directed to reconsider the application submitted by the petitioner in the light of Ext.P7 judgment and the judgments of this Court in Alwaye Sugar Agency v. Asst. Commissioner (Assmnt) (2017 (4) KLT 794) and Commercial Tax Officer v. Varghese (2018 (3) KLT 468).
Orders shall be issued after hearing the petitioner at the earliest, at any rate within six weeks from the date of receipt of a copy of this judgment.
Sd/- T.R.RAVI JUDGE mpm
WP(C) NO. 27382 OF 2022 5 APPENDIX OF WP(C) 27382/2022 PETITIONER EXHIBITS Exhibit P1 COPY MODIFIED ASSESSMENT ORDER FOR THE YEAR 2011-12 ISSUED BY THE 1ST RESPONDENT DTD.
25-09-2018.
Exhibit P2 COPY OF THE ASSESSMENT ORDER BY THE KARNATAKA COMMERCIAL TAXES AUTHORITY DATED 16-04-2021.
Exhibit P3 APPLICATION DATED 05-05-2021 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT.
Exhibit P4 COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P. (C) NO. 919/2022 DTD. 12-01-2022.
Exhibit P5 COPY OF NOTICE DTD. 29-04-2022 ISSUED BY 1ST RESPONDENT.
Exhibit P6 COPY OF THE REPLY DTD. 11-05-2022 SUBMITTED BEFORE THE 1ST RESPONDENT.
Exhibit P7 COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P. (C) NO. 29354/2021 DTD. 24-02-2022.
Exhibit P8 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DTD. 16-05-2022.