Assistant Commissioner (Assessment) vs. Tara Exports - Kerala High Court, 03 November 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 WA NO. 1757 OF 2020 AGAINST THE JUDGMENTWP(C) 21510/2020 OF HIGH COURT OF KERALA APPELLANT/S: 1 THE DEPUTY COMMISSIONER -III, SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, KOLLAM 691 002. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN RESPONDENT/S:

B. MOHANACHANDRAN NAIR PROPRIETOR, MS. PRASANTHI CASHEW COMPANY, MANGAD, KOLLAM. BY ADV HARISANKAR V MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH WA.15/2021, 22/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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1 THE DEPUTY COMMISSIONER-III, SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, KOLLAM-691002. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001. BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN

RESPONDENT/S:

PRASANTHI CASHEW COMPANY PVT LTD, MANGAD, KOLLAM, REPRESENTED BY ITS MANAGING DIRECTOR, B.MOHANACHANDRAN NAIR. BY ADV HARISANKAR V MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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1 THE STATE TAX OFFICER(WORKS CONTRACT), STATE GOODS AND SERVICES TAX DEPARTMENT, MATTANCHERRY, KOCHI 682 002 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001

BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN

RESPONDENT/S:

MARTIN GEORGE, AGED 49 YEARS, BUILDING NO. VI/114 KACHAPILLY HOUSE, ANGAMALY SOUTH P.O, ERNAKULAM 683585 BY ADV HARISANKAR V MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 WA NO. 24 OF 2021 AGAINST THE JUDGMENTWP(C) 20799/2020 OF HIGH COURT OF KERALA APPELLANT/S: 1 THE STATE TAX OFFICER (WORKS CONTRACT),STATE GOODS AND SERVICES TAX DEPARTMENT,MATTANCHERRY,ERNAKULAM - 682 002. 2 STATE OF KERALA,REPRESENTED BY ITS SECRETARY,TAXES DEPARTMENT,GOVT. SECRETARIAT,THIRUVANANTHAPURAM695 001. BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN

RESPONDENT/S:

ROOPAM CONSTRUCTIONS EDAYAPURAM ROAD, ASOKAPURAM P.O., ALUVA - 683 101, REPRESENTED BY ITS MANAGING PARTNER SRI.V.S.MYTHEEN.

BY ADVS.SRI.HARISANKAR V. MENON,SMT.MEERA V.MENON SMT.K.KRISHNA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 WA NO. 1711 OF 2020 AGAINST THE JUDGMENTWP(C) 24438/2020 OF HIGH COURT OF KERALA APPELLANT/S: 1 THE STATE TAX OFFICER (WC), STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM-682 018 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM,PIN- 695 001

BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN

RESPONDENT/S:

V.C.CONSTRUCTIONS, VANACHIRACKAL HOUSE, XIII/294, KANGARAPADY, THRIKKAKKARA ,KOCHI-682 021, REPRESENTED BY ITS MANAGING DIRECTOR, YEJO JOHN BY ADV HARISANKAR V MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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1 ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, STATE GOODS AND SERVICE TAX DEPARTMENT, KOLLAM-691 002 2 STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001

BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN

RESPONDENT/S:

TARA EXPORTS, NO.11,MUSALIAR NAGAR, 2ND MILE STONE, KILIKOLLOR ,P.O.KOLLAM-691 004, REPRESENTED BY ITS MANAGING PARTNER, NARAYAN BHARATHAN BY ADV HARISANKAR V MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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J U D G M E N T

[WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020]

S.V. Bhatti, J.

Heard Mr V K Shamsudheen, learned Senior Government Pleader and Mr Harisankar V Menon for parties.

A common identical question arises for consideration in the subject appeals. The State Goods and Services Tax (SGST) Department, represented by its Officers/Revenue is the appellant. The respondents are individual and independent dealers registered under the KVAT Act. The judgment under appeal reads as follows: “It is agreed by the Counsel on either side that the issue involved in this writ petition is squarely covered in favour of the petitioner by the decision of this Court in Baiju A A and others v. State Tax Officer [2020 (1) KHC 39]. Accordingly, following the said judgment, the writ petition is allowed by

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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quashing Ext.P2 assessment order with consequential reliefs to the petitioner.”

Mr Shamsudheen appearing for the appellants, contends that in the batch of appeals the applicability of the principle laid down in Baiju A A v. State Tax Officer1 arises in the circumstances in each one of the cases. The notice issued under Section 25 of the KVAT Act is well within the period of limitation for issuing a re-assessment notice under Section 25(1) of the KVAT Act. Without mincing any expression, the learned counsel fairly states that for want of instructions or proper verification the appellants’ counsel consented to disposing of the writ petitions by following the principle laid down in Baiju A A Case. Statement by the counsel appearing for both parties ignores a crucial test considered by this Court in Commercial

1 2019 (27) KTR 119 (Ker.)

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Tax Officer v. Najeem2 and Baiju A A, namely with the expiry of 5 year period of limitation on the completion of 31.03.2017, a right is said to have been accrued in favour of dealers from the rigour or ordeal of reassessment. Therefore, as the Amended Act is made effective from 01.04.2017, notice under Section 25 of the KVAT Act could not be issued. To fit his argument it is stated, that the 5-year period expires by 31.03.2017 up to the Assessment Year 2011-12. Section 25(1) of the KVAT Act, as amended with effect from 01.04.2017, reads thus: “(3) in section 25, in sub-section (1), - (i) for the words "five years", the words "six years" shall be substituted; (ii) for the third proviso, the following proviso shall be substituted, namely: "Provided also that the period for proceeding to determine any assessment including those subjected to extension under section 25B which expires on 31st March 2017, shall be 2 2018 (3) KLT 877

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extended up to 31st March, 2018.";

In the cases on hand one has to examine whether the notices issued are within the period of limitation stipulated by the amended provision and also before a right accrued in favour of the dealer. Even assuming that Baiju A A case was confirmed by a Division Bench of this Court, to which one of us (Justice S V Bhatti) was a party, still, if the notice was issued within the period of limitation, then it cannot be quashed by referring to the principles laid down in Baiju A A case. The following table was commended for clarity on the period within which the notice has to be issued. WA No Year 5 year only 6 year only Notice issued on 1757/20 2014-15 31.03.20 31.03.21 25.06.2020 1709/20 2013-14 31.03.19 31.03.20 03.02.2020 15/21 2014-15 31.03.20 31.03.21 25.06.2020 1711/20 2014-15 31.03.20 31.03.21 15.06.2020

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22/21 2013-14 31.03.19 31.03.20 19.02.2020 24/21 2013-14 31.03.19 31.03.20 23.01.2020

Therefore, he prays for setting aside the judgment under appeal.

The learned counsel appearing for the respondents does not dispute the dates referred to above, but the argument in support of judgment under appeal is that the judgments in Baiju A A case and judgment dated 22.08.2022 in W.A. No.48/2020, have held that the Amending Act is applicable from 01.04.2017. Therefore, it is argued that the amendment since is prospective and would not be applicable to the subject Assessment Years. We are afraid the said argument, firstly, is against the well-established principles of construction on whether a Statute is prospective or retrospective, and, secondly, against the very dictum considered and laid down by this court

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in the decisions referred to above.

Illustratively stated, in W.A. No.1709 of 2020 the dealer is served with a reassessment notice for the year 2013-14. According to the unamended period of limitation, the Department has juri iction to issue a reassessment notice on or before 31.03.2020. The period of limitation is changed with effect from 01.04.2017. Therefore, as on the date, when the period is enlarged from 5 years to 6 years, the dealer does not have a vested right or accrued interest vis-à-vis the reassessment procedure under Section 25. 6.1 When the provision is amended enhancing the period of limitation from 5 years to 6 years, the issuance of notice is well within the juri iction, and no exception could be taken. The argument of the respondents is accepted by this Court then, the amendment made through Finance Act 11/2017 is made

WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020

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more prospective than what is intended by the Legislature and the judgments of this Court. The subtle attempt made to sustain the judgments under appeal does not find favour with us for the above reasons. Hence, the judgments under appeal are set aside. The dealers/respondents herein are given liberty to file appeal before the Appellate Authority by enclosing a copy of the judgment within four weeks from today. The delay occasioned during the pendency of the appeal and the writ petition is excused. The appeals if filed shall be numbered, be heard on merits, and disposed of in accordance with law. Appeals are allowed. S.V.BHATTI JUDGE BECHU KURIAN THOMAS JUDGE jjj