M/S. Mini Hardwares vs. State Of Kerala
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Cause title — parties, addresses and appearances
JUDGMENT Heard Sri. Jose Joseph, the learned counsel for the petitioner, and Smt. M.M Jasmine the learned Government Pleader.
The prayers in this writ petition are reads as follows;
i. Declare the provisions of sub-sections (1) and (2) of section 174 of the Kerala State Goods and Services Tax Act, 2017 (Act 20 of 2017) as unconstitutional and hence unsustainable in law; ii. Declare that the power vested in the State Legislature under Entry 54 in list II of the Seventh Schedule to the Constitution, as it stood prior to the insertion of the substituted entry by the Constitution (one Hundred and First Amendment) Act, 2016, do not exist from 16.09.2016 since the erstwhile entry 54 had not been saved to validate actions taken under the repealed Acts; iii. Declare that in the absence of a saving of entry 54 in list II of the Seventh Schedule to the Constitution, as it stood prior to the insertion of the substituted entry by the constitution (One Hundred and First Amendment) Act, 2016, the KVAT, 2003 Act, enacted by the State Legislature deriving power under the old entry 54 in List II of the Seventh Schedule to the constitution has no force of law from 16.09.2016 and therefore, cannot be invoked for any purpose. iv. Declare that the 3rd respondent has no authority or juri iction to invoke the provisions of the Kerala Value Added Tax Act, 2003 and make any assessment on the petitioner, v. Call for the records of the case leading to Ext.P2
WP(C).No. 17699 of 2018 -3- order and quash the same by the issue a writ of certiorari or any other appropriate writ or order or direction as this Hon'ble Court deem fit. vi. Issue a writ of mandamus or other appropriate writ or order directing the respondent or anybody acting on his behalf to refrain from recovering the amount covered by Ext.P2 order;
The counsel appearing for the parties submit that the prayers in the instant writ petition are covered against the petitioner by the judgment in writ petition No.11335 of 2018. The operative portion of the judgment reads thus: “191. Granted, the petitioners have bona fide pursued these writ petitions; so, now, in a few cases, the petitioners may face the question of limitation. To adjust equities, I observe that if any petitioner approaches a statutory authority on an issue arising out of a writ petition which now stand disposed of in this batch, the authority will exclude for limitation the period it has spent before this Court. 192. if any petitioner files in thirty days after its receiving a copy of the judgment, a statutory appeal or takes out any other legally sustainable proceedings against the orders under challenge, the statutory authority will entertain the appeal or the proceedings as having been filed in time. And to enable the petitioners to approach the appellate authorities, the Department will defer coercive steps by thirty days, from the date of their receiving a copy of the judgment. If the appeals involve limitation, the assessee concerned may place before the appellate authority all its defences, including the judgment of this Court in W.A No.230 of 2017.
In the cases of mere notices which ought to WP(C).No. 17699 of 2018 -4- be replied to, the petitioners will have 15 days to do so. The 15 days' time, too, must be reckoned from the day the petitioners received a copy of this judgment.” Keeping in view, the view taken by this Court in W.P.(C) No.11335 of 2018, this writ petition is dismissed. S.V.BHATTI JUDGE JS
WP(C).No. 17699 of 2018 -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE NOTICE UNDER SECTION 25(1) OF THE KVAT ACT FOR THE YEAR 2013-14 DATED 20-02-2018. EXHIBIT P2OF THE ASSESSMENT ORDER UNDER THE KVAT ACT FOR THE YEAR 2013-14 DATED 31-03-2018.
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.