M/S.Asset Homes P LTD vs. The Assistant Commissioner (Works Contract) - Kerala High Court, 05 April 2019

Heard together (2 matters)

WA.No. 991 of 2019

WP(C) 37441/2018

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 FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941 WA.No. 991 of 2019 AGAINST THE JUDGMENT DATED 31-01-2019 IN WP(C) 37441/2018 of HIGHCOURT APPELLANT/PETITIONER: M/S.ASSET HOMES P LTD G-129, 28/34A, 3RD CROSS ROAD, PANAMPALLY NAGAR, KOCHI-682036, REPRESENTED BY ITS MANAGING DIRECTOR MR. SUNIL KUMAR.V BY ADV. SMT.K.LATHA RESPONDENTS/RESPONDENTS: 1 THE ASSISTANT COMMISSIONER (WORKS CONTRACT) OFFICE OF THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM-682018. 2 DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM-682018. 3 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPALAM, KARAMANA P.O.,THIRUVANANTHAPURAM-695002. 4 THE INSPECTING ASSISTANT COMMISSIONER/ REVENUE RECOVERY OFFICER IN CHARGE. COMMERCIAL TAXES, KAKKANAD, ERNAKULAM-682030. 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.991/2019 -2- C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ------------------------------------------------- W.A. No. 991 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.37441/2018, challenging the dismissal of the writ petition through judgment dated 31-01-2019. The respondents herein are the respondents in the writ petition.

The appellant had challenged Ext.P1 notice of pre- assessment issued proposing finalization of the assessment with respect to the year 2010-2011. The said notice was challenged by raising the ground that the assessment proposed 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 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.37441/2018 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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Interim order if any, which prevailed 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 The figures “2010-2011” mentioned in the 3rd line of paragraph 2 of the judgment dated 05-04-2019 in W.A. 991/2019 is corrected and substituted with figures “2011-2012” as per order dated 03-06-2019 in I.A. No.2/2019 in W.A. No.991/2019. Joint Registrar