Kalliyath Sanitations vs. The Asst. Commissioner Of State Tax - Kerala High Court, 20 March 2019

Heard together (2 matters)

WA.No. 816 of 2019

WP(C) 18630/2018

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 WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940 WA.No. 816 of 2019 (AGAINST THE JUDGMENT DATED 24-01-2019 IN WP(C) 18630/2018) APPELLANT/PETITIONER: M/S KALLIYATH SANITATIONS, EAST BAZAR, TIRUR P.O, MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, ANWAR SADAT. BY ADVS. SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON RESPONDENTS/RESPONDENTS: 1 THE ASST. COMMISSIONER OF STATE TAX STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM-695 001 2 THE COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM-695 001 3 SECRETARY TAXES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001 4 CENTRAL BOARD OF EXCISE AND CUSTOMS DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110 001 OTHER PRESENT: SPL.GP(TAXES)-SRI.C.E.UNNIKRISHNAN SC,CBEC- SRI.SREELAL N.WARRIER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WA No.816/2019 -2- C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ------------------------------------------------- W.A. No. 816 OF 2019 ------------------------------------------------- DATED THIS THE 20th DAY OF MARCH, 2019

J U D G M E N T Abdul Rehim, J: The petitioner in W.P (C) No.18630/2018 is the appellant, challenging the judgment dated 24-01-2019. The respondents herein are the respondents in the writ petition.

Challenge in the writ petition was against Ext.P1 notice proposing to re-open the assessment under Section 25 (1) & 25A of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the the 'KVAT Act', for short). The said notice was challenged questioning validity of the 101th amendment of the Constitution and the introduction of Section 174 in the Kerala State Goods and Services Tax Act. Inter alia, the appellant challenged the notice on the ground that the assessment proposed stands time barred under Section 25 (1) of the KVAT Act.

The writ petition was dismissed by the Single Judge along with a batch of other cases on holding that the question adjudicated stands covered through the judgment in W.P (C) No.11335/2018 and connected cases, dated 11-01-2019. 4. Learned counsel for the appellant contended that the judgment in W.P (C) No.11335/2018 covers only the question of WA No.816/2019 -3- validity of Section 174 of the Kerala State Goods and Services Tax Act and it does not decide the question with respect to limitation prescribed under Section 25 (1) of the KVAT Act. Learned Special Government Pleader (Taxes) had fairly conceded the said aspect. Under such circumstances, we think it appropriate to remit the matter for fresh consideration, and disposal by the Single Judge, on the question of limitation raised based on provisions of Section 25 (1) of he KVAT Act.

In the result, the above appeal is hereby allowed. The impugned judgment in W.P (C) No.18630/2018, dated 24-01-2019 is hereby set aside. The writ petition is restored on the files of this court for fresh consideration and disposal on the merits of the contentions based on the question of limitation under Section 25 (1) of the KVAT Act.

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

Needless to observe that the interim order of stay as existed on the date of dismissal of the writ petition, shall stand revived and will continue to be in force. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI JUDGE AMG