Easy Infra Inc. vs. The Assistant Commissioner Of State Tax - Kerala High Court, 19 February 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940 WP(C).No. 4067 of 2019 PETITIONER/S: EASY INFRA INC.,TC.39/1489(6),RAJ TOWERS KALYANI HOSPITAL ROAD, MANACAUD P.O. THIRUVANANTHAPURAM - 695 009 REPRESENTED BY ITS AUTHORISED SIGNATORY BALACHANDRAN.K.B. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER OF STATE TAX SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM, PIN - 695 002. 2 THE DEPUTY COMMISSIONER OF STATE TAX STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM, PIN - 695 002. GP DR. THUSHARA JAMES. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4067 of 2019 2

JUDGMENT The petitioner complains against the assessment proceedings for 2011-2012 on the ground that they have been barred by limitation. To support that contention, it pleads that the first ever notice was issued on 19.04.2018, that is, beyond six years.

When the Court queried whether the Court considered the same issue earlier, the petitioner's counsel has brought to my notice a judgment in Commercial Tax Officer, Anchal and Others v. S.Najeem and Another1. 3. To my another specific query whether 2011-2012 was considered in that judgment, the petitioner's counsel has fairly submitted that, it has not been considered, but the principle, all the same, applies.

On the other hand, the learned Government Pleader reminds me that, the Court, recently, has followed a consistent procedure in applying the ratio of S.Najeem if the year of assessment is covered by the judgment; otherwise, the Court has relegated all other petitioners to the appellate forum. That is, the Court has let a competent statutory appellate authority to decide the issue of 1 21018(4)KHC 666 limitation involving the assessment years beyond 2010-2011. 5. Granted, if an issue has been squarely covered both on the principles of law and also on the facts, it is inequitable even for the Court to drive the litigant to the rigmarole of an alternative remedy. For there remains nothing to be adjudicated further, except applying the decision of a binding authority.

On the contrary, if the judgment relied on does not cover the point directly but the ratio or holding may apply, then the judgment at best becomes a precedent. Merely because there is presidential support, if at all, for the suitor, we cannot ignore the alternative remedy—more particularly an efficacious one, at that. Under these circumstances, I hold that the petitioner has an efficacious alternative remedy. And before the appellate authorities, it is open for the petitioner to cite S.Najeem and all other precedents, and press its cause. Thus I close the Writ Petition expressing nothing on merits. DAMA SESHADRI NAIDU

JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF NOTICE DATED 19/04/2018 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 25(1) FOR THE YEAR 2011-12. EXHIBIT P2 COPY OF REPLY DATED 8/05/2018 FILED BY THE PETITIONER. EXHIBIT P3 COPY OF ORDER DATED 30/06/2018 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 25(1) FOR THE YEAR 2011-12. EXHIBIT P4 COPY OF APPLICATION DATED 19/09/2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5 COPY OF ORDER DATED 19/01/2019 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12.