Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 3RD DAY OF JANUARY 2023 / 13TH POUSHA, 1944 WP(C) NO. 42480 OF 2022 PETITIONER/S:
M/S GMA DESIGNERS & BUILDERS PVT LIMITED CIN: U45200KL201 LPTC.28627 T.C. 13/109, PETTAH P.O., THIRUVANANTHAPURAM REPRESENTED BY ITS DIRECTOR RAVINDRA GEORGE PEREIRA, PIN - 625024 BY ADVS.
G.HARIKUMAR (GOPINATHAN NAIR) AKHIL SURESH RESPONDENT/S:
1 THE STATE TAX OFFICER (WORKS CONTRACT) KSGST DEPARTMENT, 2ND FLOOR, TAX TOWER, KARAMANA PO THIRUVANANTHAPURAM, PIN - 695002 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 - 695033 3 STATE OF KERALA THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO TAXES SECRETARIAT,MAIN B LOCK, THIRUVANANTHAPURAM, PIN - 695001 ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH WP(C).24047/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.42480 & 24047 OF 2022 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 3RD DAY OF JANUARY 2023 / 13TH POUSHA, 1944 WP(C) NO. 24047 OF 2022 PETITIONER/S:
GMA DESIGNERS & BUILDERS PVT LTD AGED 67 YEARS GMA DESIGNERS & BUILDERS PVT LTD, T.C 13/109, PETTAH P.O, THIRUVANANTHAPURAM , PIN - 695024 BY ADV G.HARIKUMAR (GOPINATHAN NAIR) RESPONDENT/S:
1 STATE TAX OFFICER (WORKS CONTRACT) KSGST DEPARTMENT, 2ND FLOOR, TAX TOWERS, KARAMANA P.O, THIRUVANANTHAPURAM, PIN - 695002 2 ASSISTANT COMMISSIONER ASSISTANT COMMISSIONER (INTELLIGENCE), KSGST DEPARTMENT, SPECIAL SQUAD-IV, PUBLIC OFFICE BUILDINGS,VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN - 695003 3 STATE OF KERALA STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO TAXES, SECRETARIAT, MAIN BLOCK, THIRUVANANTHAPURAM, PIN - 695001 4 DEPUTY TAHSILDAR DEPUTY TAHSILDAR, TALUK OFFICE, EAST FORT, PAZHAVANGADI, THIRUVANANTHAPURAM, PIN - 695023 SMT. THUSHARA JAMES, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH WP(C).42480/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.42480 & 24047 OF 2022 3 JUDGMENT [WP(C) Nos.42480/2022, 24047/2022]
These writ petitions have been filed, challenging orders of assessment and orders imposing penalty on the petitioner in these petitions, for the assessment years 2013-14. These orders are impugned mainly on the ground that they are issued beyond the period specified in Section 25(1) of the Kerala Value Added Tax Act.
2.
When the mattes are taken up for consideration today, it is common case that the issue now stands covered by the Division Bench Judgment of this Court in State Tax Officer, Ernakulam & Others V. Baiju A.A. & Others [Manu/KE/2522/2022].
3.
Learned counsel appearing for the petitioner in these petitions would submit that the issue as to whether the penalty could have been imposed is also a subject matter of the decision of this Court in MCP Enterprises and Ors. V.
State of Kerala and Others
[2020(2) KLT 295].
4. Learned Senior Government Pleader would submit that since the question as to whether the orders of
WP(C) Nos.42480 & 24047 OF 2022 4 assessment and penalty have been issued beyond the time specified in Section 25(1) of the KVAT Act has to be determined at least at the first instance by the concerned officer.
5.
Considering the fact that the issues appear to be covered by the law laid down in Baiju A.A (supra) and MCP Enterprises (supra), the impugned assessment/penalty orders in these cases are set aside and the matters are remanded for the consideration of the 1st respondent, who shall consider the question as to whether the orders of assessment and the orders imposing penalty can be justified in terms of the law laid down by this Court in Baiju A.A (supra) and MCP Enterprises (supra). The 1st respondent shall endeavour to pass fresh orders, after taking into consideration the decisions referred to above, within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner shall mark appearance before the 1st respondent at 11.00 AM on 09.01.2023 either in person or through the authorised representative. The 1st respondent shall, thereafter, pass fresh orders as directed above and within the time specified above.
WP(C) Nos.42480 & 24047 OF 2022 5
These writ petitions stand disposed of with the aforesaid directions.
sd/- GOPINATH P.
JUDGE ajt
WP(C) Nos.42480 & 24047 OF 2022 6 APPENDIX OF WP(C) 24047/2022 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 15-03-21 ISSUED U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2013-14 BY 1ST RESPONDENT TO THE PETITIONER Exhibit-P2 TRUE COPY OF THE DETAIL REPLY DATED 13-04-21 AGAINST EXBT-P1 NOTICE FOR 2013-14 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT Exhibit-P3 TRUE COPY OF THE ASSESSMENT ORDER DATED 15- 04-21 FOR THE YEAR 2013-14 PASSED U/S 25(1) OF THE KVAT ACT, BEYOND THE PERIOD OF LIMITATION, BY 1ST RESPONDENT ON THE PETITIONER.
Exhibit-P4 TRUE COPY OF THE RR NOTICES DATED 18-03-22 ISSUED BY 4TH RESPONDENT TO THE PETITIONER FOR THE YEAR 2013-14.
WP(C) Nos.42480 & 24047 OF 2022 7 APPENDIX OF WP(C) 42480/2022 PETITIONER 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.
Exhibit P3 TRUE COPY OF ORDER NO.-CR~VAT/SQIV/02/20- 21 (2013-14) DATED 17.02.2021 Exhibit P4 TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 15.03.2021 UNDER SEE. 25(I) OF THE KVAT ACT FOR THE YEAR 2013-14 Exhibit P5 TRUE COPY OF THE DETAIL REPLY DATED 13.04.2021 AGAINST EXBT-PL NOTICE FOR 2013- 14.
Exhibit P6 TRUE COPY OF ORDER NO. 32011305096/2013-14 DATED 15.04.2021 Exhibit P7 TRUE COPY OF THE ORDER IN W.P (C) 24047 OF 2022 DATED 27.07.2022