Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 WP(C) NO. 28075 OF 2021 PETITIONER:
M/S. GEORGE MICHAEL ASSOCIATES T.C.13/109(2), NALUMUKKU, PETTAH P.O., THIRUVANANTHAPURAM-695 024, REPRESENTED BY ITS MANAGING PARTNER, RAVINDRA GEORGE PEREIRA.
BY ADVS.
G.HARIKUMAR (GOPINATHAN NAIR) AKHIL SURESH RESPONDENTS:
1 THE STATE TAX OFFICER (WORKS CONTRACT) KSGST DEPARTMENT, 2ND FLOOR, TAX TOWERS, KARAMANA P.O., THIRUVANANTHAPURAM-695 002.
2 THE ASSISTANT COMMISSIONER (INTELLIGENCE), KSGST DEPARTMENT, SPECIAL SQUAD-IV, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.
3 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO TAXES, SECRETARIAT, MAIN BLOCK, THIRUVANANTHAPURAM-695 001.
DR. THUSHARA JAMES, SR.GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH WP(C).228/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 28075 OF 2021 & 228 OF 2023 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 WP(C) NO. 228 OF 2023 PETITIONER:
M/S. GEORGE MICHAEL ASSOCIATES(P) LTD AGED 67 YEARS CIN :U45200KL2011PTC.28627 T.C. 13/109 (2), NALUMUKKU PETTAH P.O., THIRUVANTHAPRAM 625 024, REPRESENTED BY ITS DIRECTOR, RAVINDRA GEORGE PEREIRA BY ADVS.
G.HARIKUMAR (GOPINATHAN NAIR) AKHIL SURESH ANU BALAKRISHNAN NAMBIAR ATHUL M.V.
RESPONDENTS:
1 THE STATE TAX OFFICER (WORKS CONTRACT), KSGST DEPARTMENT, 2ND FLOOR, TAX TOWER, KARAMANA PO THIRUVANANTHAPURAM, PIN – 695 002 2 ASSISTANT COMMISSIONER (INT) OFFICE OF ASSISTANT COMMISSIONER OF STATE TAX (INTELLIGENCE), MOBILE SQUAD NO. IV, STATE GST DEPARTMENT, NEW PUBLIC OFFICE BUILDINGS, 'C' BLOCK, OPPOSITE MUSEUM THIRUVANANTHAPURAM, PIN – 695 033 3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO TAXES, SECRETARIAT,MAIN BLOCK, THIRUVANANTHAPURAM, PIN – 695 001 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH WP(C).28075/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 28075 OF 2021 & 228 OF 2023 3 T.R.RAVI, J.
---------------------------------------- WP (C) Nos. 28075 of 2021 & 228 of 2023 ------------------------------------------- Dated this the 01st day of February, 2023 JUDGMENT
The above two writ petitions have been filed challenging the assessment order and the order imposing penalty on the petitioners for the assessment year 2011 -2012. The orders are challenged on the ground that they are issued beyond the period prescribed under Section 25(1) of the Kerala Value Added Tax.
When the case is taken up today, it is submitted by the counsel on either side that the issue is covered by the judgment of a Division Bench of this Court in Baiju A.A and others v. State Tax officer and others [Manu/KE/2522/2022]. The counsel for the petitioners also submitted that the question whether the penalty can be imposed was also a subject matter in the judgment of this Court in MCP Enterprises and others v.
State of Kerala and others [2020 (2) KLT 295] 2. The Senior Government Pleader submits that the fact whether the orders have been issued beyond the time prescribed under Section 25(1) of the the Kerala Value Added Tax has to be determined at the first instance by the concerned officer.
WP(C) NOS. 28075 OF 2021 & 228 OF 2023 4 3. In the above circumstances, the impugned order of assessment and penalty are set aside and the matters are remanded for consideration by the 1st respondent. The 1st respondent shall consider the fact whether the orders have been issued beyond the time specified in Section 25(1) of the Kerala Value Added Tax, in terms of the law laid down by this Court in Baiju A.A (supra) and MCP Enterprises (supra). Fresh orders shall be issued within two months from the date of receipt of a certified copy of this judgment. The counsel for the petitioner submits that the petitioners have been directed to appear on 10.02.2023 with respect to the assessment years 2012-2013. In such circumstances, the authority may take up the issue regarding the assessment year 2011-2012 also alongwith. The petitioners need not await any fresh notice for such appearance, from the 1st respondent.
T.R.RAVI sn JUDGE
WP(C) NOS. 28075 OF 2021 & 228 OF 2023 5 APPENDIX OF WP(C) 28075/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 15.3.2021 ISSUED U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2011-12 BY 1ST RESPONDENT TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE DETAIL REPLY DATED 13.4.21 AGAINST EXHIBIT P1 NOTICE FOR 2011-12 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE ASSESSMENT ORDER DATED 15.4.21 FOR THE YEAR 2011-12 PASSED U/S 25(1) OF THE KVAT ACT, BEYOND THE PERIOD OF LIMITATION, BY 1ST RESPONDENT ON THE PETITIONER.
RESPONDENT'S EXHIBITS : NIL
WP(C) NOS. 28075 OF 2021 & 228 OF 2023 6 APPENDIX OF WP(C) 228/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF NOTICE U/S 67 (1) DATED 04.12.2020 Exhibit P2 TRUE COPY OF REPLY DATED 11.01.2021 SUBMITTED BY THE PETITIONER Exhibit P3 TRUE COPY OF ORDER NO.-CR-VAT/SQ.IV/01/20-21 (2011-12) DATED 17.02.2021.
Exhibit P4 TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 15.03.2021 UNDER SEC. 25(1) OF THE KVAT ACT FOR THE YEAR 2011-12 Exhibit P5 TRUE COPY OF THE DETAILED REPLY DATED 13.04.2021 AGAINST EXT P1 NOTICE FOR 2011-12 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT Exhibit P6 TRUE COPY OF THE ORDER NO. 32011303994/2011- 12 DATED 15.04.2021 Exhibit P7 TRUE COPY OF THE ORDER IN WP(C) 28075/2021 DATED 08.12.2021 OF THIS HON'BLE COURT RESPONDENT'S EXHIBITS : NIL //TRUE COPY// PA TO JUDGE