Bcg Estates And Builders PVT.Limited vs. State Of Kerala - Kerala High Court, 21 March 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THUR AY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940 WA.No. 874 of 2019 AGAINST THE JUDGMENT IN WP(C) 641/2019 OF THE HIGHCOURT OF KERALA APPELLANT/PETITIONER IN WP(C): M/S.BCG ESTATES AND BUILDERS PVT.LIMITED 32/662, BCG ESTATES NH BYPASS, PALARIVATTOM P.O, ERNAKULAM KERALA 682 025, REPRESENTED BY ITS DIRECTOR MS RENU C. BABU. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SMT.K.SHARANYA VIJAY SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN RESPONDENTS/RESPONDENTS IN WP(C): 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE STATE TAX OFFICER(WC) STATE GST DEPARTMENT, CLASS TOWER, 2ND FLOOR, OLD RAILWAY STATION, ERNAKULAM 682 018

SPL.GP(TAXES)- SRI.C.E.UNNIKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

WA.No. 874 of 2019 2 JUDGMENT Abdul Rehim,J The petitioner in W.P(C) No.641/2019 is challenging judgment of the learned Single Judge dated 24.01.2019. The respondents herein are the respondents in the writ petition.

Challenge in the writ petition was against Ext.P1 notice issued proposing assessment under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The assessment was challenged mainly on the ground that it is barred by limitation stipulated under Section 25(1) of the KVAT Act. Inter alia, challenge was raised against Section 174 of the Kerala State Goods and Services Tax Act (KSGST Act) on the basis that the said provision is not sustainable in view of the 101th amendment and it is inconsistent with Entry 54 of List-II of the 7th schedule of the Constitution of India read with Article 246 A of the Constitution.

The above writ petition was dismissed by holding that the issue stands covered through the judgment in W.P(C) No.11335/2018 and connected case, dated 11.01.2019. But learned counsel appearing for the appellant had pointed out that, the judgment in W.P(C) No. 11335/2018 does not cover the question regarding bar of limitation under Section 25(1) of the KVAT Act. Learned Special Government Pleader (Taxes) had fairly conceded

WA.No. 874 of 2019 3 that the challenge against the impugned notice on the basis of the question of limitation provided under Section 25(1) was not considered by the learned Single Judge. Under the such circumstances, we are of the opinion that the matter need to be remitted to examine the limited question of limitation under Section 25(1) of the KVAT Act.

Hence, the above writ appeal is hereby allowed. The impugned judgment n W.P(C) No. 641/2019 is set aside to the above said extent. The writ petition is restored on the files of this Court, for fresh consideration and disposal to the extent mentioned as above.

The Registry shall post the writ petition before the Single Judge dealing with the subject, as per the roster. Needless to observe that the interim stay existed as on the date of dismissal of the writ petition shall stand revived and shall continue to be in force. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI lsn JUDGE