Uma Rajeev vs. State Tax Officer - Kerala High Court, 20 January 2020

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941 WP(C).No.1416 OF 2020(B) PETITIONER: UMA RAJEEV, AGED 43 YEARS PROPRITRIX, U R APPARELS, TC/14-04-1283, RAGOM LANE, KANNANMOOLA, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENTS: 1 STATE TAX OFFICER, STATE GOODS AND SERVICES TAX, 3RD CIRCLE, TAX TOWER, KARAMANA P.O., THIRUVANANTHAPURAM-695002. 2 COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWER, KARAMANA P.O., THIRUVANANTHAPURAM-695022. 3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 4 ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWER, KARAMANA P.O., THIRUVANANTHAPURAM-695022. SRI.THUSHARA JAMES, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1416 OF 2020(B) 2 ALEXANDER THOMAS, J ============================ W.P.(C). NO. 1416 OF 2020 ============================================== Dated this the 20th day of January 2020

J U D G M E N T The facts narrated in this writ petition (civil) are as follows: That the petitioner was a registered dealer under the KVAT Act, 2003, before the 1st respondent, filed monthly and Ext.P1 annual return for the year 2010-11. Ext.P1 return filed for 2010-11 completed self assessment U/s. 21 of the KVAT Act. The 1st respondent completed Ext.P2 ex-parte assessment order dated 30/09/2019 for 2010-11 under section 25A of the KVAT Act, mechanically. Petitioner relies on Ext.P3 and P4 judgments passed by this Court in similar set of fact. Prior to getting assessments time barred, the 1st respondent did not initiate proceedings and the mere alleging of service of notice dated 29/06/2019 is also beyond limitation period. Apart from the above, the said assessment cannot be considered as pending assessments, for the reason of not re-opening the assessment with a notice prior to its expiry. The 1st respondent has no juri iction to re-open an assessment already completed self assessment, after expiry of the statutory time limit.

Hence this writ petition challengingExt.P2 order passed by the 1st respondent U/s. 25A to KVAT Act for the year 2010-11 for quashing the same, under Article 226 of the Constitution of India, which may please be WP(C).No.1416 OF 2020(B) 3 considered in the interest of justice. That on 31/08/2011 – Petitioner submitted Ext.P1 annual return for 2010-2011 and on 30/09/2019 – 1st respondent completed Ext.P2 order for 2010-11 u/s. 25A to KVAT Act. Petitioner relies on Exts.P3 and P4 judgments passed by this Court in similar set of facts.

The petitioner has raised the following contentions: 1) Ext.P1 return filed for 2010-11 u/s.20 of the KVAT Act, with proof of payment of output tax in accordance with law. Hence assessment for 2010-11 completed self assessment under section 21 of the KVAT Act. 2) Only if assessment proceedings initiated prior to expiry of statutory time limit, assessment could be completed. The limitation period for 2010-11 is 5 year from the return period, which expired on 31/03/2016. For this reason alone Ext.P2 order completed on 30/09/2019 by the 1st respondent is without juri iction, being after the limitation period, is liable to be set aside, in the light of the reported decision of this Court in Ext.P3 judgment in Philips India Ltd. Vs. Assistant Commissioner & Others (2016) 96 VST 229(Ker); (2017) 25 KTR 209(Ker) and in Ext.P4 judgment passed by this Court. 3) The Division Bench of this Court upheld Ext.P3 judgment, in the writ Appeal filed by the State. 4) Ext.P2 order is passed as per an ex-parte order and in fact, the notice dated 29/06/2019, alleged is not served to the petitioner.

In the light of these averments and contentions, the petitioner has filed the instant writ petition (civil) with the following prayers: i)to call the records leading to issuance of Ext.P2 order issued U/s. 25A of the KVAT Act from 1st respondent and to issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P2 order, issued by the 1st respondent; ii) to issue a writ in the nature of certiorari or any other appropriate writ or order, declaring that completion of ext.P2 order for the year 2010-11, for the 1st time after 31/03/2016 is beyond the time of limitation, unsustainable.

WP(C).No.1416 OF 2020(B) 4

Heard Sri. Tomson T. Emmanuel, learned counsel appearing for the petitioner and Smt. Thushara James, learned Government Pleader appearing for the respondents.

After hearing both sides, it is seen that the matter in issue is covered in favour of the petitioner as per Ext.P3 judgment in the case in Philips India Ltd. Vs. Assistant Commissioner & Others (2016) 96 VST 229(Ker); (2017) 25 KTR 209(Ker) as well as by Ext.P4 judgment passed by this Court on 02/02/2017 in WP(c) 35493/2016. Ext.P3 judgment has been upheld by the Division Bench of this Court. Further petitioner has got a specific case that Ext.P2 order is an ex-parte order and the notice dated 26/09/2019 has not been served on the petitioner. In that view of the matter, it is ordered that the impugned Ext. P2 ex-parte order will stand quashed. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS N JUDGE

WP(C).No.1416 OF 2020(B) 5 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF ANNUAL RETURN DATED 31.08.2011 SUBMITTED BY THE PETITIONER FOR THE YEAR 2010-11, WITH PROOF OF PAYMENT OF OUTPUT TAX. EXHIBIT P2OF ORDER DATED 30.09.2019 PASSED BY 1ST RESPONDENT U/S.25A OF KVAT ACT FOR THE YEAR 2010-11. EXHIBIT P3OF JUDGMENT DATED 05.10.2016 PASSED BY THIS HON'BLE COURT IN BATCH OF CASES AS REPORTED IN (2017) 25 KTR 209 (KER), IN QUASHING AS ORDER PASSED AFTER 5 YEARS TIME SPECIFIED IN SEC.25(1) OF KVAT ACT. EXHIBIT P4OF JUDGMENT DATED 02.02.2017 IN WPC NO.35493 OF 2016 PASSED BY THIS HON'BLE COURT ON SIMILAR SET OF FACT. //// P.A. to Judge