M/S.Comfy Shoemakers PVT. LTD. vs. State Of Kerala - Kerala High Court, 10 April 2019

Heard together (2 matters)

WA.No. 1089 of 2019

WP(C) 17650/2018

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941 WA.No. 1089 of 2019 AGAINST THE JUDGMENT IN WP(C) 17650/2018 of HIGHCOURT APPELLANT/PETITIONER: M/S.COMFY SHOEMAKERS PVT. LTD., CENTRE SQUIRE, 6284-SHOP NO.106, FIRST FLOOR, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS GENERAL MANAGER, MR.NAHAS KHAN. BY ADVS. SRI.A.KUMAR SMTG.MINI(1748) SRI.P.J.ANILKUMAR SRI.P.S.SREE PRASAD RESPONDENT/RESPONDENT: 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE UNION OF INDIA, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110 001. 3 THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 4 THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, 2ND CIRCLE, ERNAKULAM - 682 016. 5 THE STATE TAX OFFICER, COMMERCIAL TAX OFFICE, KVAT 2ND CIRCLE, ERNAKULAM - 682 016. W.A.No. 1089 of 2019 2 R1,R3 TO R5 SR.GP.SRI.V.K.SHAMSUDHEEN R2 SRI.JAYASANKAR V NAIR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: W.A.No. 1089 of 2019 3 C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ. -------------------------------------------- W.A.No. 1089 of 2019 ---------------------------------------------- Dated this the 10th day of April, 2019

JUDGMENT Abdul Rehim,J The appellant herein is the petitioner in W.P(C) No. 17650/2018. The appellant is challenging dismissal of the writ petition through the judgment dated 11.01.2019. The respondents herein

are the respondents

in the writ

petition.

The appellant challenged Ext.P3 order of revised assessment passed by the 4th respondent by raising among other grounds that the 4th respondent has no juri iction to pass such an order in a proceedings for rectification of the assessment under Section 66 of the Kerala Value Added Tax Act (for short 'the KVAT Act'). Inter alia, the appellant challenged constitutional validity of Section 174 of the Kerala State Goods and Service Tax Act, 2017 (for short 'the KSGST Act'). The writ petition was dismissed by the learned Single Judge along with a batch of other cases by holding that, the issue stands squarely covered against the appellant through the judgment in WP(C) No.11335/2018 and connected cases, dated 11.01.2019. 3. Learned counsel for the appellant pointed out that the question decided in judgment in WP(C) No.11335/2018 and connected cases relates only with respect to the constitutional validity of Section 174 of the KSGST Act. It is pointed out that the learned Judge had omitted to consider other grounds raised in challenge of the impugned order of assessment.

The fact that question covered under W.P(C) No.11335/2018 relates only with respect to validity of Section 174 of the KSGST Act, is conceded by the learned Government Pleader appearing for the respondents. It is also conceded that the validity of Section 174 of the KSGST Act is a question now pending consideration before the Division Bench of this Court in a batch of writ appeals. Under such circumstances, we are of the opinion that remittance of the writ petition for fresh consideration of questions raised other than the validity of Section 174 of the KSGST Act would suffice to meet the ends of justice.

Hence, the above writ appeal is hereby allowed. The judgment in WP(C) No.17650/2018 is hereby set aside. The writ petition is restored on to the files of this Court, for fresh consideration and disposal on the basis of the grounds raised other than the validity of Section 174 of the KSGST Act.

The Registry shall post the writ petition before the learned Single Judge dealing with the subject matter, as per the roster. It is made clear that the interim order existed as on the date of dismissal of the writ petition will stand revived and shall continue to be in force. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI lsn JUDGE