Josco Fashion Jewellers vs. State Of Kerala - Kerala High Court, 28 March 2019

Heard together (2 matters)

WA.No. 935 of 2019

WP(C) 15898/2018

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 THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941 WA.No. 935 of 2019 AGAINST THE JUDGMENT IN WP(C) 15898/2018 of HIGHCOURT DATED 11.01.2019 APPELLANT/PETITIONER: JOSCO FASHION JEWELLERS, RAJIV GANDHI SHOPPING CENTER, KOTTAYAM REPRESENTED BY ITS PROPRIETOR SRI.P.A JOSE. BY ADVS. SRI.A.KUMAR SMTG.MINI(1748) SRI.P.J.ANILKUMAR SRI.P.S.SREE PRASAD RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2 THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM 695 001 3 ASSISTANT COMMISSIONER, SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM 686 001 SPL.GP (TAXES) SRI. C.E.UNNIKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WA.No. 935 of 2019 2 C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ. -------------------------------------------- W.A. No. 935 of 2019 ---------------------------------------------- Dated this the 28th day of March, 2019

JUDGMENT Abdul Rehim,J The petitioner in WP(C) No.15898/2018 is the appellant herein challenging the judgment dated 11.1.2019 dismissing the writ petition. The respondents herein are the respondents in the writ petition.

Exts.P4 and P5 notices proposing cancellation of the compounding facility and assessment of tax, issued under provisions of the Kerala Value Added Taxes Act ('KVAT Act' for short), were under challenge in the writ petition. One of the main ground raised against the impugned proceedings is based on the challenge against validity of Section 174 of the KSGST Act, as it is contrary to the provisions under the Constitution. Inter alia, other contentions based on the question of limitation as well as the power to cancel the compounding etc., were also raised in the writ petition.

The writ petition was dismissed through a common judgment passed in WP(C) No. 11335/2018 and connected cases, which is impugned herein. Learned counsel for the appellant submitted that, the judgment covers only the question of constitutional validity of Section 174 of the KSGST Act. It is submitted that the learned Single Judge has not adverted to the other grounds raised in the writ petition. The fact that no grounds other than the constitutional validity of Section 174 of the KSGST Act was considered by the learned Single Judge, is fairly admitted by the Special Government Pleader (Taxes). Under such circumstances, we are of the opinion that a remittance of the writ petition for fresh consideration on the questions other than the validity of Section 174, is necessary.

Hence, the above writ appeal is hereby allowed. The impugned judgment in WP(C) No. 15898/2018 is hereby set aside to the limited extent as mentioned above. The writ petition is restored on the files of this Court for fresh consideration by the learned Single Judge on the limited extent as mentioned above.

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

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