The State Of Kerala vs. Arun S Reddy
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P.
WA.No.4 OF 2021 AGAINST THE JUDGMENT DATED 03-09-2019 IN WP(C) 9134/2019(N) OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS: 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, STATE GOODS AND SERVICES TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER STATE GOODS AND SERVICES TAXES DEPARTMENT, 9TH FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P O, THIRUVANANTHAPURAM-695001. 3 THE DEPUTY COMMISSIONER OF STATE TAX (APPEALS) ERNAKULAM, 4TH FLOOR, SGST DEPARTMENT COMPLEX, THEVARA, COCHIN-682015. 4 THE STATE TAX OFFICER STATE GOODS AND SERVICES TAXES DEPARTMENT, SECOND CIRCLE, KALAMASSERY, CIVIL STATION, KAKKANAD, ERNAKULAM-682030. BY GOVERNMENT PLEADER RESPONDENT/PETITIONER: ARUN S REDDY AGED 42 YEARS, PARTNER, M/S BRINDHAVAN, DOOR NO. C C 32/2332, PJRA-3, PRASANTHI LANE, PALARIVATTOM, KOCHI-682025. R1 BY ADV. SRI.S.M.PREM R1 BY ADV. SRI.P.RAMACHANDRAN (PALAKKAD) R1 BY ADV. SRI.H.NARAYANAN OTHER PRESENT: SRI. C.E. UNNIKRISHNAN-SPL. G.P. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2021, ALONG WITH WA.64/2021, WA.126/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA Nos.4, 64 & 126/2021 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P.
WA.No.64 OF 2021 AGAINST THE JUDGMENT DATED 03-09-2019 IN WP(C) 20333/2019(N) OF HIGH COURT OF KERALA APPELLANT/RESPONDENT: THE ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE-I, ERNAKULAM, COCHIN - 682 018. SRI. C.E. UNNIKRISHNAN-SPL. G.P. RESPONDENTS/PETITIONERS: 1 EMPIRE DISTRIBUTORS PONNURUNNI, COCHIN - 682 019, REPRESENTED BY ITS MANAGING PARTNER MR.RONY A.PALLAN. 2 RONY A.PALLAN MANAGING PARTNER, EMPIRE DISTRIBUTORS, NARANYANAN ASAN ROAD, PONNURUNNI, COCHIN - 682 019. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2021, ALONG WITH WA.4/2021, WA.126/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA Nos.4, 64 & 126/2021 -3- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P.
WA.No.126 OF 2021 AGAINST THE JUDGMENT DATED 03-09-2019 IN WP(C) 5563/2019(U) OF HIGH COURT OF KERALA APPELLANT/RESPONDENT: THE ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE 1, ERNAKULAM, COCHIN 682 018. SRI. C.E. UNNIKRISHNAN-SPL. G.P. RESPONDENTS/PETITIONERS: 1 EMPIRE DISTRIBUTORS PONNURUNNI, COCHIN 682 019, REPRESENTED BY ITS MANAGING PARTNER MR. RONY A. PALLAN 2 RONY A PALLAN, MANAGING PARTNER, EMPIRE DISTRIBUTORS, NARANYNAN ASAN ROAD, PONNURUNNI, COCHIN 682 019. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2021, ALONG WITH WA.4/2021, WA.64/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA Nos.4, 64 & 126/2021 -4- J U D G M E N T DATED THIS THE 3rd DAY OF FEBRUARY, 2021 Shaffique, J: These appeals have been filed by the State challenging common judgment dated 03-09-2019 in W.P (C) Nos.5563, 9134 & 20333/2019. The substantial issue involved in these cases is with reference to challenge made by the writ petitioners when an action had been taken by the Taxation Department alleging escaped turnover on the ground that the writ petitioners have sold the products under registered trade mark though the registration certificate was received on a future date. Contention urged by the Department was that when the trade mark registration becomes valid from the date of filing application, they are liable to pay the tax which ought to have been paid as a registered trade mark holder from the validity date though the registration certificate was given only subsequently.
The writ petitioners had relied upon an earlier judgment of this court in W.P (C) No.8888/2015 decided on 15-06-2016, wherein a similar question had arisen in the matter. This court (myself) after considering the effect of deeming provision under the Trade Mark Act and referring to judgment in Meghraj Biscuits Industries Ltd. v. Commissioner of Central Excise, U.P.; [(2007) 3 SCC 780] held that the deeming provision under the Trade Marks Act applies only to WA Nos.4, 64 & 126/2021 -5- the provisions of the said Act and cannot be applied to any other statute unless otherwise provided.
In the case on hand the learned Single Judge had also taken note of the aforesaid principle and had allowed the writ petition setting aside the assessments made. It was declared that the sale of unregistered products which are subsequently registered does not furnish cause of action for re-opening the assessments.
Learned Special Government Pleader while impugning the judgment of the learned Single Judge tried to distinguish the law laid down by the Apex Court in Meghraj Biscuits Industries Ltd. (supra) while contending that the factual aspects involved in the said case was entirely different from what has been decided in W.P (C) No.8888/2015. But we don't think so. Even in Meghraj Biscuits Industries Ltd. (supra), though the question was in regard to claiming exemption as an SSI Unit, the Apex Court in paragraph 18 has clearly arrived at a finding regarding the effect of making the registration certificate applicable from retrospective date. It is held that the principle of deemed equivalence to public user of such mark and the deeming fiction cannot be extended to the Excise Law. Paragraph 18 reads as under:
“18. On reading the above quoted paragraphs from the above judgment, with which we agree, it is clear that the effect of making the registration certificate applicable from retrospective
WA Nos.4, 64 & 126/2021 -6- date is based on the principle of deemed equivalence to public user of such mark. This deeming fiction cannot be extended to the Excise Law. It is confined to the provisions of the Trade Marks Act. In a given case like the present case where there is evidence with the Department of the trade mark being owned by M/s. Kay Aar Biscuits (P) Ltd. and where there is evidence of the appellants trading on the reputation of M/s. Kay Aar Biscuits (P) Ltd. which is not rebutted by the appellants (assessee), issuance of registration certificate with retrospective effect cannot confer the benefit of exemption Notification to the assessee. In the present case, issuance of registration certificate with retrospective effect from 30.9.91 will not tantamount to conferment of exemption benefit under the Excise Law once it is found that the appellants had wrongly used the trade mark of M/s. Kay Aar Biscuits (P) Ltd.” Taking into consideration the law laid down as such, the issue is squarely covered by Meghraj Biscuits Industries Ltd. (supra). We don't think that we will be justified in interfering with the judgment of the learned Single Judge. Accordingly, these writ appeals are dismissed. ( ) A.M. SHAFFIQUE, JUDGE. ( ) GOPINATH P., JUDGE. AMG
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.