Rajeev Gandhi House Construction Co Op Society LTD. vs. State Of Kerala
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Cause title — parties, addresses and appearances
JUDGMENT K. Vinod Chandran, J.
The appeal is against the judgment of a learned Single Judge refusing to exercise juri iction on the ground of an effective alternative remedy available to the appellant/the assessee. The appellant challenged Ext.P1 notice and Ext.P8 assessment order issued for the year 2014-2015. 2. The appellant was a contractor, who obtained an award for dredging sand from the Department of Ports. The issue is as to the sale of sand effected at the hands of the appellant. The Commercial Taxes Department found that the returns filed by the appellant-assessee does not fully disclose the sale transactions carried out by them. The Assessing Officer hence attempted an assessment on best judgment basis, estimating the amount of sand dredged and assessing the sale of such sand to tax under the Kerala Value Added Tax Act, 2003 [for brevity, the Act]. The learned Single Judge directed the appellant to approach the statutory authorities.
We are also of the opinion that there is no ground raised commending the exercise of juri iction under Article 226 of the Constitution of India, as has been laid down in State of Gujarat v. Ambuja Cements [(2016) 93 VST 436 (Guj)]. The appellant then filed an application for amendment of the pleadings in the writ petition and also placed before us two judgments of the Hon'ble Supreme Court in Pandit Ishwardas v. State of Madhyapradesh and Others [(1979) 4 SCC 163] and Nagappa v. Gurudayal Singh and Others [(2003) 2 SCC 274].
The amendment sought is in so far as incorporating a challenge to the assessment proceedings on the basis of the amendments to the Constitution of India, which, according to the appellant, would interdict any assessment under the KVAT Act, which has been now superseded by the Goods and Services Taxes Act, for reason of the period provided in the constitutional amendment having expired. A batch of writ petitions are pending before a learned Single Judge and the learned Government Pleader informs us that the hearing has been proceeded with and would be completed within a week.
In such circumstances, if the amendment is allowed, then that would be a ground for the State or the assessee to submit before the learned Single Judge that the Division Bench is seized of the matter. We would not thus preempt a consideration by the learned Single Judge, especially since the hearing is said to be almost completed. We hence refuse to allow the petition to amend the writ petition to incorporate the pleadings that were never argued before the learned Single Judge. We do not think that the cited decisions stand in the way of refusing to exercise the discretion for amending the writ petition at the appellate stage. The cited decisions are an authority only for the proposition that there is nothing inhibiting the Appellate Court from making an amendment when the essential pleadings are not digressed from. We are of the opinion that the essential pleadings have been digressed from and the present legal point has to be first urged before the learned Single Judge.
We hence dismiss the writ appeal, leaving open the remedy of the appellant before the statutory authorities and if so advised, to even approach the learned Single Judge with the question of law urged in the affidavit accompanying the amendment application. Parties to suffer their respective costs. We leave open the questions to be urged before the appellate authority or the writ court. K. VINOD CHANDRAN, JUDGE. ASHOK MENON, JUDGE. //// P.A. To Judge sp/24/07/18
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.