Earthline Services Private Limited vs. State Of Kerala - Kerala High Court, 07 August 2018

Heard together (3 matters)

WP 31711/2014

W.A.24 OF 2015

W.P.(C) No. 25972 of 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 DAMA SESHADRI NAIDU TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940 WP(C).No. 25972 of 2018 PETITIONER EARTHLINE SERVICES PRIVATE LIMITED, REPRESENTED BY MR.VARKEY THOMAS, DIRECTOR, 1A, 4TH FLOOR, 11TH CROSS ROAD, LINGARAJAPURAM, ST.THOMAS TOWN POST, BANGALORE-560 084. BY ADVS.SRI.SUKUMAR NAINAN OOMMEN SRI.SHERRY SAMUEL OOMMEN SRI.RAHUL IPE PRASAD RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT BUILDING, THIRUVANANTHAPURAM-695 001. 2. DEPUTY COMMISSIONER APPEALS-II, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER SRI T.A.UNNIKRISHNAN GOVERNMENT PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25972 of 2018 (V) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1: TRUE COPY OF THE IMPUGNED 'POSTING NOTICE' NO.2423/2015 DATED 18.07.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2: TRUE COPY OF PETITIONER'S LETTER DATED 27.06.2014. EXHIBIT P3; TRUE COPY OF THE PETITIONER'S REPLY DATED 30.10.2014. EXHIBIT P4: TRUE COPY OF UNDATED DEMAND NOTICE ISSUED BY THE CTO. EXHIBIT P5: TRUE COPY OF ORDER OF THE LEARNED SINGLE JUDGE DATED 08.12.2014 IN WP 31711/2014. EXHIBIT P6: TRUE COPY OF ORDER OF THE HON'BLE DB DATED 06.10.2015 IN W.A.24 OF 2015. EXHIBIT P7: TRUE COPY OF PETITIONER'S APPEAL DATED 02.10.2015. EXHIBIT P8: TRUE COPY OF PETITIONER'S ADDITIONAL STATEMENT DATED 25.01.2016. JJJ DAMA SESHADRI NAIDU, J. ------------------------------------------ W.P.(C) No. 25972 of 2018 (V) ------------------------------------------ Dated: 07th August, 2018

J U D G M E N T The petitioner, a Private Limited Company, is a dealer under Kerala Value Added Tax Act, 2003 (KVAT Act). Faced with the notice dated 02.06.2014 under Section 25(1) of the KVAT Act, it has filed this writ petition. It sought the following reliefs: "i. Issue a writ of mandamus or any other appropriate writ, order or direction declaring Section 174(1)(i) of the Kerala State Goods and Services Tax Act, 2017 as being unconstitutional for contravention of Sections 17(b)(ii) and 19 of the Constitution (One Hundred and First Amendment) Act, 2016; and strike down the same. ii. Issue a writ of mandamus or any other appropriate writ, order or direction declaring Section 174(2) of the Kerala State Goods and Services Tax Act, 2017 as being unconstitutional for contravention of Sections 17(b)(ii) and 19 of the Constitution (One Hundred and First Amendment) Act, 2016; and strike down the same. iii. Issue a writ of mandamus or any other appropriate writ, order or direction setting aside the impugned 'Posting Notice' in Exhibit P1. iv. Issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;

W.P.(C) No.25972/2018 -2- v. Award costs to the petitioners"

A learned Division Bench of this Court in M/s. Cholayil Pvt. Ltd v. The Assistant Commissioner (Assessment)1 has ruled on the question of limitation. Now, both the learned Counsel agree that the issue of limitation raised in this writ petition thus stands squarely answered—and in the petitioner's favour, at that.

Once a lis can be disposed of, and a grievance can be redressed, on the statutory adjudication, the other issues, especially involving constitutional validity, need not be addressed. The canon of constitutional avoidance is well established. I therefore allow this writ petition, on the issue of limitation, applying the ratio of M/s. Cholayil Pvt. Ltd. DAMA SESHADRI NAIDU JUDGE jjj 07/08/2018 1 Judgment dated 5th July 2018