M/S. Evm Motors vs. The Assistant Commissioner(I) - Kerala High Court, 05 April 2019

Heard together (3 matters)

WA.No. 995 of 2019

WP(C) 38423/2018

TC 55/14

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 FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941 WA.No. 995 of 2019 AGAINST THE JUDGMENT DATED 24-01-2019 IN WP(C) 38423/2018 of HIGHCOURT APPELLANT/PETITIONER: M/S. EVM MOTORS, TC 55/1425, EVM HONDA, KAIMANAM, NEERAMANAKARA, THIRUVANANTHAPURAM, KERALA - 695 040, REPRESENTED BY ITS MANAGING PARTNER MR.SABU JOHNY. BY ADV. SMT.K.LATHA RESPONDENTS/RESPONDENTS: 1 THE ASSISTANT COMMISSIONER(I), SGST DEPARTMENT, SPECIAL CIRCLE, COMMERCIAL TAXES, TAX TOWER, KILIPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002. 2 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPALAM, KARAMAN P.O., THIRUVANANTHAPURAM - 695 002. OTHER PRESENT: SPL.GP.SRI.C.E.UNNIKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WA No.995/2019 -2- C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ------------------------------------------------- W.A. No. 995 OF 2019 ------------------------------------------------- DATED THIS THE 5th DAY OF APRIL, 2019

J U D G M E N T Abdul Rehim, J: The appellant herein is the petitioner in W.P (C) No.38423/2018, challenging the dismissal of the writ petition, through judgment dated 24-01-2019. The respondents herein are the respondents in the writ petition.

The appellant challenged Ext.P1 notice of pre- assessment issued proposing finalization of assessment with respect to the year 2010-2011. The said notice was challenged by raising the ground that the assessment remains barred by limitation provided under Section 25 (1) of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the 'KVAT Act', for short). Inter alia, the appellant had challenged validity of Section 174 of the Kerala State Goods and Services Tax Act (KSGST Act for short) on the ground that it is violative of the provisions contained in the Constitution. The writ petition was dismissed along with a batch of other cases by holding that the issue involved stands squarely covered against the petitioner by -3- virtue of 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 judgment in W.P (C) No.11335/2018 covers only the question of validity of Section 174 of the KSGST Act. It is pointed out that the learned Single Judge had omitted to consider and decide the challenge raised based on the question of limitation under Section 25 (1) of the KVAT Act. The above fact is not disputed by the learned Special Government Pleader (Taxes) appearing for the respondents. Therefore we are of the considered opinion that a remittance of the writ petition for fresh consideration and disposal on the question 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 impugned judgment in W.P (C) No.38423/2018 is hereby set aside. The writ petition is restored on to the files of this court and is remanded for fresh decision by the Single Judge on the question as mentioned above.

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

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It is made clear that the appellant will be at liberty to move before the learned Single Judge seeking stay against assessment if any finalized, consequent to the dismissal of the writ petition. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI JUDGE AMG