Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 11TH DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 WP(C) NO. 30061 OF 2018 PETITIONER/S:
DAISY VINCENT, AGED 57 YEARS, W/O P. O VINCENT, PROPRIETRIX, SOUMYA PLASTICS,11/784, INDUSTRIAL ESTATE, OLLUR, THRISSUR-680306 BY ADVS.
DR. K. P. PRADEEP SANAND RAMAKRISHNAN NEENA ARIMBOOR T.T.BIJU T.THASMI MEDAYILTANYA MARIE VICTO RESPONDENT/S:
1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY(TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 COMMERCIAL TAX OFFICER/STATE TAX OFFICER, 4TH CIRCLE, THRISSUR, COMMERCIAL TAXES/ KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, CT COMPLEX, POOTHOLE, THRISSUR-680004 3 COMMISSIONER OF KERALA STATE GST KERALA STATE GST DEPARTMENT, TAX TOWERS, KILLIPALAM, KARAMANA P.O., THIRUVANANTHAPURAM-695002.
SMT.M.M.JASMINE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT The petitioner is the registered dealer under the Kerala Value Added Tax Act, 2003 (for short, “the KVAT Act”), dealing in manufacture of plastic semi boxes from recycled plastic waste.
2. Ext.P1 notice for assessment year 2009-10 was issued to the petitioner on 08.03.2016, alleging that the return filed by the petitioner is incorrect and not acceptable.
Pursuant to that, the petitioner filed WP(C) No.16400/2016 before this Court and a direction was given to the assessing authority to consider and pass orders on the notice after hearing the petitioner. Subsequently, Ext.P3 notice dated 25.05.2018 was issued to the petitioner again rejecting the return filed by the petitioner.
3. The petitioner submits that the assessment for
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the year 2009-10 was clearly barred by limitation since Ext.P1 notice was issued only on 08.03.2016, which was after five years from the last date of year, to which the return relates. Thereafter, the 2nd respondent finalized the assessment proceedings vide Ext.P5 order, denying the contention of limitation and hence, the petitioner has approached this Court with this writ petition.
4. Heard the learned counsel for the petitioner and the learned Government Pleader.
5. It could be seen that Ext.P1 notice was issued by the 2nd respondent for completing the assessment for the assessment year 2009-10 on 08.03.2016, which was after five years from the last date of the year, to which the return relates. In Ext.P5 order, the officer, though considered the contention of limitation, has overruled the same by stating that the time for completing assessment under Section 25(1) of the Act, which expires on 31.03.2015, was
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extended up to 31.03.2016. However, the issue was considered by this Court in Commercial Tax Officer, Anchal and others v. S.Najeem and another [2018(4)KHC 666(DB)], wherein a Division Bench of this Court has held that the period of limitation to determine tax payable is five years as per Section 25(1) of the KVAT Act, 2003. Ext.P1 notice was issued only on 08.03.2016, after six years from the last date of the year 2009-10, to which the return relates, which is perfectly out of time.
6. Following the judgment in S.Najeem (supra), the writ petition is allowed as follows;
Ext.P5 order passed by the 2nd respondent is set aside. Hence, Exts.P1 & P3 demand notices initiated pursuant thereto also stand set aside.
Sd/- SHOBA ANNAMMA EAPEN JUDGE bka/-
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APPENDIX OF WP(C) 30061/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTICE NO.32081485105/2009-10 DATED 8.3.2016 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF THE KERALA VALUE ADDED TAX ACT, 2003.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 29.5.2017 IN WPC NO.16400 OF 2016.
EXHIBIT P3 TRUE COPY OF THE NOTICE NO.32081485105/2009-10 DATED 25.5.2018 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF THE KERALA VALUE ADDED TAX ACT, 2003.
EXHIBIT P4 TRUE COPY OF THE REPLY DATED 6.6.2018 SUBMITTED TO THE 2ND RESPONDENT FOR THE YEAR 2009-2010 BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER NO.32081485105/2009-10 DATED 8.6.2018 ISSUED BY THE 2ND RESPONDENT.