Josco Gold Corporation PVT.LTD vs. State Of Kerala - Kerala High Court, 26 March 2019

Heard together (2 matters)

WA.No. 843 of 2019

WP(C) 15321/2018

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 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941 WA.No. 843 of 2019 AGAINST THE JUDGMENT IN WP(C) 15321/2018 OF HIGHCOURT OF KERALA DATED 11-01-2019 APPELLANT/PETITIONER: M/S.JOSCO GOLD CORPORATION PVT.LTD EMJAY COMPLEX, MARKET JUNCTION, NEDUMANGAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR. SABU THOMAS. BY ADVS. SRI.A.KUMAR SMT.G.MINI SRI.P.J.ANILKUMAR SRI.P.S.SREEPRASAD 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 THE ASSISTANT COMMISSIONER (KVAT) COMMERCIAL TAXES, KOTTAYAM-686 001. SRI. C E UNNIKRISHNAN, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WA.No. 843 of 2019 2 C.K.ABDUL REHIM, J & R.NARAYANA PISHARADI, J ---------------------------------------------------- W.A.No.843 of 2019 ----------------------------------------------------- Dated this the 26th day of March, 2019

JUDGMENT C.K.Abdul Rehim, J The petitioner in WP(C) No.15321/2018 is the appellant herein, challenging the judgment dated 11.01.2019 dismissing the writ petition. The respondents herein are the respondents in the writ petition.

Ext.P3 notice issued by the 3rd respondent proposing assessment under Section 25(1) of the Kerala Value Added Tax Act (KVAT Act, for short) with respect to the assessment year 2011-12 was under challenge in the writ petition. The appellant challenged the vires of Section 174 of the Kerala State Goods and Service Tax Act 2017 (KSGST Act, for short) by contending that it is ultravires of Article 246A of the Constitution of India and is against the 101th amendment of the constitution. Inter alia, it was contended that a similar notice issued with respect to the previous assessment year(2010-11) is pending under challenge before this Court in W.P.(C) No.12818/2017. It is contended that the assessment proposed with respect to the subsequent year, without awaiting outcome of the above writ petition, cannot be sustained.

The writ petition was dismissed through the impugned judgment by holding that the issue relating to challenge against Section 174 of the KSGST Act stands covered against the appellant by judgment in WP(C)No.11335/2018 and connected cases, dated 11.01.2019. Learned counsel for the appellant pointed out that, the learned Single Judge had failed to consider the challenge raised on other aspects and also about pendency of WP(C)No.12818/2017. We take note of the fact that no issues other than the vires of Section 174 of the KSGST Act was decided in the impugned judgment cited above. Learned Special Government Pleader(Taxes) also conceded that no other issue involved in the writ petition was considered by the Single Judge.

Under such circumstances, we think it appropriate to remit the writ petition for a fresh consideration and disposal on all the questions, other than the vires of Section 174 of the KSGST Act.

Therefore, the above writ appeal is hereby allowed. The impugned judgment in WP(C)No.15321/2018 is hereby set aside. The writ petition is restored on the files of this Court. The Registry shall post the writ petition for consideration before the Single Judge dealing with the subject, as per the roster. It is made clear that the interim order of stay prevailed at the time 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 PV