Indian Oil Corporation Limited vs. The Assistant Commissioner (Assmt) - Kerala High Court, 05 March 2019

Heard together (2 matters)

WA.No. 718 of 2019

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 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940 WA.No. 718 of 2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 19264/2018 of HIGHCOURT APPELLANT/PETITIONER: INDIAN OIL CORPORATION LIMITED PANAMPILLY NAGAR, ERNAKULAM, COCHIN-682 036,REPRESENTED BY R.GOVINDARAJAN, CHIEF MANAGER (FINANCE) BY ADV. SRI.JOSE JOSEPH RESPONDENTS/RESPONDENTS: 1 THE ASSISTANT COMMISSIONER (ASSMT) SPECIAL CIRCLE 11, COMMERCIAL TAXES, COMMERCIAL TAXES COMPLEX, ERNAKULAM-682 015. 2 THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE-11, COMMERCIAL TAXES COMPLEX, ERNAKULAM 682 015 3 THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, COMMERCIAL TAXES COMPLEX, ERNAKULAM 682 015 4 THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, COMMERCIAL TAXES COMPLEX, ERNAKULAM 682 015. 5 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 015. 6 THE UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI-110 001. OTHER PRESENT: SPL.GP.SRI.C.E.UNNIKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ. ----------------------------------------------------- Writ Appeal No. 718 OF 2019 ------------------------------------------------------- Dated this the 5th day of March, 2019

J U D G M E N T Abdul Rehim

, J. M/s Indian Oil Corporation Ltd., a Public Sector Undertaking, is the appellant herein challenging the judgment of the Single Judge in W.P.(C) No.19264/2018, dated 21.01.2019. 2. The appellant challenged Exts.P2 and P7 orders passed respectively by the 3rd and 4th respondents in exercise of powers vested under Section 17(7) of the Kerala General Sales Tax Act, 1963(for short, KGST Act) and also Ext.P8 order of assessment passed by the 2nd respondent, with respect to the year 2012 - 2013. Challenge against Exts.P2 and P7 seems to be that, those orders are passed without affording any opportunity of hearing to the petitioner. Interalia it is contended that the Deputy Commissioner becomes functus officio once he exercises the power vested under Section 17(7); and a further extension cannot be granted beyond the power vested on such authority. Consequential assessments made based on Exts.P2 and P7 are also assailed as time barred.

Learned Judge had dismissed the writ petition following a common judgment passed in W.P.(C)11335/2018 and connected cases, by observing that the issue squarely stands covered against the appellant/petitioner. But it is fairly conceded by the learned Special Government Pleader(Taxes) that, the issue covered under the judgment in W.P. (C)11335/2018 relates to the vires of Section 174 of the KGST Act, 2017. Learned Special Government Pleader points out that, there are also grounds raised in the writ petition relating to Section 174, and that is how the above writ petition happened to be dismissed along with other matters by following the common judgment in W.P.(C) 11335/2018 and connected cases. But Sri. Jose Joseph, learned counsel appearing for the appellant, conceded that he is limiting his challenge against Exts.P2, P7 and P8 orders based on the contention that the assessment is time barred. In other words, the only contention pressed into service is that the authority had no powers to extend the period, on the second occasion.

In view of the situation mentioned as above, we take note of the fact that the writ petition ought to have been considered on merits based on the contentions raised relating to Section 17(7) of the KGST Act. But it was dismissed only based on another judgment, which relates to the question of the legality of Section 174 of the KGST Act. Therefore we are inclined to remit the matter to the Single Judge for a fresh consideration and disposal.

Consequently, the above writ appeal is allowed and the impugned judgment in W.P.(C) No.19264/2018 is hereby set aside. The writ petition is restored back on the files of this court. The Registry will post the writ petition before the Single Judge having juri iction as per the roster. C.K. ABDUL REHIM, JUDGE. R. NARAYANA PISHARADI, JUDGE. ul/- [] P.S. to Judge.