M/S.Chathamkulam Projects And Developers Private Limited vs. The State Tax Officer, Commercial Tax Officer - Kerala High Court, 29 March 2019

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 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 WA.No. 948 of 2019 AGAINST THE JUDGMENT IN WP(C).NO.26416/2018 OF HIGHCOURT OF KERALA DATED 25-01-2019 APPELLANT/PETITIONER: M/S.CHATHAMKULAM PROJECTS AND DEVELOPERS PRIVATE LIMITED, 8/892, CHATHAMKULAM, CHANDRANAGAR, PALAKKAD, REPRESENTED BY ITS MANAGING DIRECTOR SRI.SUMESH BABU. BY ADV. SRI.N.MURALEEDHARAN NAIR RESPONDENTS/RESPONDENTS: 1 THE STATE TAX OFFICER, COMMERCIAL TAX OFFICER, WORKS CONTRACT, PALAKKAD DISTRICT-678 001. 2 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPALAM, KARAMANA P.O., THIRUVANANTHAPURAM-695 002. 3 SECRETARY, TAXES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001. 4 CENTRAL BOARD OF EXCISE AND CUSTOMS, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110 001. SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF EXCISE & CUSTOMS SRI.C.E.UNNIKRISHNAN, SPL.GP (TAXES) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: W.A.No.948 of 2019 2 C.K.ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ---------------------------------------- W.A.No.948 of 2019 ----------------------------------------- Dated this the 29th day of March, 2019

JUDGMENT C.K.Abdul Rehim, J: The petitioner in W.P.(C).No.26416 of 2018 is the appellant herein, challenging the judgment dated 25.01.2019 of the Single Judge dismissing the writ petition. The respondents herein are the respondents in the writ petition.

Ext.P1 pre-assessment notice was challenged mainly contending that the assessment proposed is barred by the limitation provided under Section 25(1) of the Kerala Value Added Tax Act, 2003(KVAT Act). Inter alia, the appellant challenged the validity of Section 174 of the Kerala State Goods and Services Tax Act, 2017 (KSGST Act), based on a contention that it is in conflict with the provisions of the Constitution and is unsustainable.

The writ petition was dismissed along with a batch of other cases by holding that the issue involved stands covered against the petitioner through the judgment in W.P.(C)No.11335 of 2018 and connected cases, dated 11.01.2019. Learned counsel for the appellant contended that, the judgment in W.P. (C)No.11335/2018 covers only the question regarding constitutional validity of Section 174 of the KSGST Act and it does not considered the question of limitation based on the factual aspects, as contemplated under Section 25(1) of the KVAT Act. The above aspect is fairly considered by learned Special Government Pleader (Taxes) appearing for the respondents.

Under such circumstances, we think it is appropriate to remit the matter for a fresh consideration and disposal by the Single Judge, on the question of limitation provided under Section 25(1) of the KVAT Act.

Hence, the above writ appeal is hereby allowed.

The impugned judgment in W.P.(C)No.26416 of 2018 dated 25.01.2019 is hereby set aside. The writ petition is restored on the files of this court. The Registry is directed to post the writ petition before the learned Single Judge for a fresh decision on the above said question regarding challenge on the basis of the bar of limitation under Section 25(1) of the KVAT Act. The interim stay which was in force as on the date of dismissal of the writ petition shall stand revived and shall continue to be in force. C.K.ABDUL RAHIM JUDGE R. NARAYANA PISHARADI JUDGE DK