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Aji P Varghese vs. The Commercial Tax Officer

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WP(C)/12587/2018HC KeralaGSTCNR KLHC01044177201811 April 2018Bench: HONOURABLE MR. JUSTICE P.B.SURESH KUMAR5 pages

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Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940 WP(C).No. 12587 of 2018 PETITIONER(S) 1 AJI P VARGHESE., S/O.LATE P.M VARGHESE, PULOKOOTTIL HOUSE, PLOT NO.76,3RD STREET, NEHRU NAGAR, KURIACHIRA P.O, THRISSUR-680 006. 2 VALSA VARGHESE W/O.LATE P.M VARGHESE,PULIKKOOTTIL HOUSE, PLOT NO.76,3RD STREET,NEHRU NAGAR, KURIACHIRA P.O, THRISSUR-680 006. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENT(S): 1. THE COMMERCIAL TAX OFFICER, 1ST CIRCLE, THRISSUR-680 001. 2. COMMISSIONER OF STATE GST., TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM 695 002. 3. GOODS AND SERVICES TAX NETWORK PVT. LTD EAST WING, 4TH FLOOR,WORLD MARK-1, AEROCITY, NEW DELHI 110 037, REPRESENTED BY ITS MANAGING DIRECTOR. 4. GOODS AND SERVICE TAX COUNCIL, 5TH FLOOR, TOWER-II,JEEVAN BHARATHI BUILDING, JANPATH ROAD, CONNAUGHT PLACE, NEW DELHI 110 001 REPRESENTED BY ITS CHAIRMAN. R1-2 BY SPL.GOVERNMENT PLEADERSMT SMT.THUSHARA JAMES. R BY SRI.P.R.SREEJITH,SC,GOODS AND SERVICES TAX NETWORK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12587 of 2018 (W) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 COPY OF REGISTRATION CERTIFICATE ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 COPY OF THE ACKNOWLEDGEMENT FOR FILING OF EXISTING TAX PAYER TO THE DEPARTMENT EXHIBIT P3 COPY OF DEATH CERTIFICATE ISSUED BY THE THRISSUR CORPORATION EXHIBIT P4 COPY OF PARTNERSHIP DEED EXECUTED BETWEEN THE PETITIONERS 1 & 2 EXHIBIT P5 COPY OF APPLICATION FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P6 COPY OF LETTER FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P6(A) COPY OF APPLICATION FOR AMENDMENT OF REGISTRATION DETAILS FILED BY THE 1ST PETITIONER EXHIBIT P7 COPY OF REPRESENTATION FILED BY THE 1ST PETITIONER EXHIBIT P8 COPY OF JUDGMENT IN W.P(C) NO. 4427/2018 OF THIS HON'BLE COURT EXHIBIT P9 COPY OF NOTICE ISSUED BY 1ST RESPONDENT EXHIBIT P10 COPY OF OBJECTION FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P11 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT. // TRUE COPY // Sd/- PS TO JUDGE Kvs/- P.B.SURESH KUMAR, J. = = = = = = = = = = = = = W.P.(C).No.12587 of 2018 = = = = = = = = = = = = = Dated this the 11th day of April, 2018

J U D G M E N T The first petitioner is the son and the second petitioner is the wife of P.M.Varghese, who was a registered dealer under the Kerala Value Added Tax Act (the Act). P.M.Varghese died on 21.05.2017. On the death of the dealer, the petitioners formed Ext.P4 partnership and applied for transfer of registration of the deceased dealer in favour of the partnership, as provided for under Section 18A of the Act. The application has been rejected by the competent authority as per Ext.P11 order. Ext.P11 order is under challenge in this writ petition.

2.

Heard the learned counsel for the petitioners as also the learned Government Pleader.

3.

Ext.P11 order indicates that the competent authority rejected the application submitted by the petitioners on the ground that the benefit of Section 18A of the Act cannot be extended to a partnership. The view taken by the competent authority is unsustainable. It is beyond dispute that the partnership formed by the petitioners is claiming the benefits available to “the legal heir who continues the business" as contained in sub- section (1) of Section 18A of the Act. The explanation to Section 18A of the Act reads thus: "The expression “the legal heir who continues the business” used in this section shall also include a partnership consisting solely of the legal heirs of the deceased dealer as partners." The competent authority has no case that Ext.P4 partnership is not a partnership consisting solely of the legal heirs of the deceased dealer. The case of the petitioners is, therefore, covered by the said explanation.

In the circumstances, Ext.P11 order is quashed and the competent authority is directed to allow the application of the petitioners. This shall be done within four weeks from the date of receipt of a copy of this judgment. P.B.SURESH KUMAR, JUDGE. Kvs/- ////

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.