R. Sudheesh Mithran v. The State Tax Officer-1 - Kerala High Court, 19 July 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUE AY, THE 19TH DAY OF JULY 2022 / 28TH ASHADHA, 1944 WP(C) NO. 42321 OF 2018 PETITIONER: R. SUDHEESH MITHRAN AGED 66 YEARS PROPRIETOR, LATHA AGENCIES, KACHERY JUNCTION, AMBALAPUZHA, ALAPPUZHA-688 561. BY ADVS. V.DEVANANDA NARASIMHAM P.H.RIYAS RESPONDENTS: 1 THE STATE TAX OFFICER-1 STATE GST DEPARTMENT, FIRST CIRCLE, CIVIL STATION, ALAPPUZHA-688 001. 2 THE COMMISSIONER AND SECRETARY TO TAXES KERALA STATE GOODS AND SERVICE TAX, TAX TOWER, KARAMANA P.O., KILLIPALAM, THIRUVANANTHAPURAM-695 002. 3 THE CENTRAL BOARD OF EXCISE AND CUSTOMS DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110 001. OTHER PRESENT: SMT. RESMITHA R. CHANDRAN - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No. 42321 OF 2018 ..2.. J U D G M E N T Exts.P1 order is under challenge in this writ petition. This writ petition is filed with the following prayers:- (i) to issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P1 assessment order and Ext.P4 demand notice passed u/s.25(1) of the KVAT Act by 1st respondent for the year 2011-12; (ii) to issue a writ in the nature of certiorari or any other appropriate writ or order declaring that Ext.P1 assessment order is barred by limitation under the amended provisions of Section 25(1) of the Act as null and void, illegal and unsustainable; (iii) to issue a writ in the nature of certiorari or any other appropriate writ or order declaring demand of interest on assessed tax from the end of the assessment year and demand of interest in Ext.P1 assessment order and Ext.P4 demand notice for the year 2011-12 as illegal and unsustainable; (iv) to declare that the powers under erstwhile Entry 54 do not exist post 15-9-17 and therefore provisions of Kerala VAT Act cannot be enforced after 15-09-17 so long as the old Entry 54 has not been saved; (v) to declare that when provisions of Ext.P2 Constitution Amendment Act are inconsistent with the provisions contained in Section 174 of the Kerala SGST Act,2017, the Constitutional provisions only will prevail and hence Section 174 of the Kerala SGST Act to the extent to which they are in conflict with Constitution provisions are bad in law; (vi) to issue a writ in the nature of mandamus or any other appropriate writ or order directing 1st respondent to keep in abeyance all further proceedings pursuant to Ext.P4 demand notice issued by him to the petitioner until disposal of this writ petition;”

The main challenge in the writ petition is against 101st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017, stating that the provisions of the Kerala

W.P.(C)No. 42321 OF 2018 ..3.. Value Added Tax Act, 2003 (for short, “the KVAT Act”) can be enforced only until the expiry of one year from the date, on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent legislature and the second challenge is that Exhibit P1 order is passed by the first respondent without juri iction since the assessment is barred by limitation as far as it relates to the assessment year, 2011-12. 3. Heard the learned counsel for the petitioner and the learned Government Pleader.

On a perusal of Ext.P1 order, it could be seen that the assessment year is 2011-12. The notice for assessment under Section 25(1) of the KVAT Act, 2003 was issued on 6.7.2018, which is after five years from the last date of the year, to which the return relates. In Baiju v. State Tax Officer [2020(1) KLT 233], this Court has dealt with this issue and 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 order is passed on 30.11.2018 and the notice under Section 25(1) of the KVAT Act, 2003 was issued only on 6.7.2018, after 6 years and almost 3 months from the last date of the year 2011-12, which is perfectly

W.P.(C)No. 42321 OF 2018 ..4.. out of time.

Following the judgment in Baiju (supra), the writ petition is allowed as follows; Ext.P1 order passed by the first respondent is set aside. Hence, Ext.P4 demand notice initiated pursuant thereto also stands set aside. SHOBA ANNAMMA EAPEN, JUDGE MBS/

W.P.(C)No. 42321 OF 2018 ..5.. APPENDIX OF WP(C) 42321/2018 PETITIONER'S EXHIBITS:- EXHIBIT P1OF ASSESSMENT ORDER DATED 30.11.18 PASSED U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2011-12 BY THE IST RESPONDENT TO THE PETITIONER. EXHIBIT P2OF THE CONSTITUTION (101ST AMENDMENT) ACT, 2016 DATED 8.9.16 PUBLISHED IN THE EXTRA ORDINARY GAZETTE OF INDIA. EXHIBIT P3OF INTERIM ORDER GRANTED BY THIS COURT IN WPC NO.11335/2018 DATED 4.4. 18. EXHIBIT P4OF THE DEMAND NOTICE DATED 30.11.2018 ISSUED BY IST RESPONDENT PURSUANT TO EXT-P1 ASSESSMENT ORDER FOR THE YEAR 2011- 12 TO PETITIONER.