M/S.Sony Rubbers vs. The Assistant Commissioner - Kerala High Court, 09 April 2019

Heard together (2 matters)

WA.No. 1026 of 2019

WP(C) 38032/2018

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 TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941 WA.No. 1026 of 2019 AGAINST THE JUDGMENT DATED 22-01-2019 IN WP(C) 38032/2018 of HIGHCOURT APPELLANT/PETITIONER: M/S.SONY RUBBERS, RAMAPURAM, PALA, REPRESENTED BY ITS PROPRIETOR SRI.V.A.AUGUSTINE. BY ADVS. SRI.AJI V.DEV SMT.O.A.NURIYA SRI.ALAN PRIYADARSHI DEV RESPONDENTS/RESPONDENTS: 1 THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, S.G.S.T.DEPARTMENT, NAGAMPADAM, KOTTAYAM - 686 001. 2 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002. 3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO TAXES, SECRETARIAT, THIRUVANANTHAPURAM - 695 002. OTHER PRESENT: SR.GP.SRI.MOHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WA No.1026/2019 -2- C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ------------------------------------------------- W.A. No. 1026 OF 2019 ------------------------------------------------- DATED THIS THE 9th DAY OF APRIL, 2019

J U D G M E N T Abdul Rehim, J: The petitioner in W.P (C) No.38032/2018 is the appellant herein, challenging the judgment dismissing the writ petition dated 22-01-2019. The respondents herein are the respondents in the writ petition.

Exhibit P3 order of assessment pertaining to the year 2010-2011 was under challenge in the writ petition based on a contention that the proceeding for assessment was initiated after lapse of period stipulated under Section 25 (1) of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the 'KVAT Act', for short). Inter alia, the juri iction of the assessing authority was also challenged on the basis of challenging the constitutional amendment and introduction of Section 174 of the Kerala State Goods and Services Tax Act (KSGST Act for short). The writ petition was dismissed by the learned Single Judge along with a batch of other cases on the finding that the issue -3- involved stands covered against the appellant through the judgment in W.P (C) No.11335/2018 and connected cases, dated 11-01-2019. 3. Learned counsel for the appellant contended that the issue involved in the judgment in W.P (C) No.11335/2018 and connected cases pertains only with respect to the question of constitutional validity of Section 174 of the KSGST Act. It is pointed out that the learned Single Judge had failed to advert to the other contentions raised in the writ petition, based on the question of limitation and other aspects. The above fact is not disputed by learned Government Pleader appearing for the respondents, and it is conceded that the correctness of the decision in W.P (C) No.11335/2018 and connected cases is now pending consideration in other writ appeals. Under such circumstances we are of the opinion that a remittance of the writ petition for a fresh consideration and disposal based on the grounds raised other than the validity of Section 174 of the KSGST Act, is necessary.

Hence, the above writ appeal is hereby allowed. The impugned judgment in W.P (C) No.38032/2018 is hereby set aside. The writ petition is restored on the files of this court for -4- fresh consideration and disposal by the Single Judge on the ground mentioned as above.

The Registry shall post the writ petition before the learned Single Judge, dealing with the subject matter as per the roster.

The interim order which prevailed as on the date of dismissal of the writ petition shall stand revived and shall continue to be in force. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI JUDGE AMG