Indsil Hydropower And Manganese ... vs Assistant Commissioner Of State ...
2022 Latest Caselaw 8115 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
   THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                 WP(C) NO. 18782 OF 2018
PETITIONER:

          INDSIL HYDROPOWER AND MANGANESE LIMITED,
          VI/679, PALLATHERI, ELAPPULLY, PALAKKAD, PIN
          - 678 622, REPRESENTED BY ITS GENERAL
          MANAGER (WORKS) RAJAN JOSE.
          BY ADVS.
          SRI.S.ANIL KUMAR (TRIVANDRUM)
          SRI.K.V.JAYAPRAKASH
          SRI.M.RAJAGOPAL

RESPONDENTS:

   1      ASSISTANT COMMISSIONER OF STATE TAX,
          STATE GST DEPARTMENT, NEAR CIVIL STATION,
          PALAKKAD, PIN 678 001
   2      THE STATE OF KERALA, REPRESENTED BY THE
          PRINCIPAL SECRETARY TO GOVERNMENT,TAXES
          DEPARMENT,GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001
   3      UNION OF INDIA REPRESENTED BY ITS SECRETARY,
          DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,
          ROOM NO. 46, NORTH BLOCK, NEW DELHI - 110001
OTHER PRESENT:

          SMT. RESMITHA R. CHANDRAN - GP


       THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 01.07.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.18782 OF 2018

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                              JUDGMENT

Exts.P4 and P4(a) orders are under challenge in this

writ petition. The petitioner has filed this writ petition with the

following prayers:-

(i) declare the provisions of clauses(d) and (e) of sub-

section(2) of section 174 of the Kerala State Goods and Services Tax Act,1017 (Act 20 of 2017) as unconstitutional and hence unsustainable in law;

(ii) declare that the power vested in the State Legislature under Entry 54 List II of the Seventh Schedule to the Constitution, as it stood prior to the insertion of the revised entry by the Constitution (One Hundred and First Amendment) Act,2016, do not exist from 8-09-2017 so long as the erstwhile entry 54 had not been saved to validate actions taken under the repealed Act;

(iii) issue a writ of certiorari or other appropriate writ or orders or direction as this Hon'ble Court deems fit to call for the records leading to the issue of Ext.P4 and Ext.P4(a) orders and to strike down and quash them;

(iv) issue a writ of mandamus or other appropriate writ or orders directing the respondent or anybody acting on his behalf to refrain from recovering the demand created as per Ext.P4 and Ext.P4(a) orders;

2. The main challenge in the writ petition is against 101 st

Constitutional Amendment of the Kerala State Goods and

Services Tax Act, 2017 stating that the provisions of the Kerala

Value Added Tax Act, 2003 (for short, "the KVAT Act") can be

enforced only until the expiry of one year from the date on which

the nationwide goods and service tax was implemented or until the

amendment was repealed by a competent legislature and the W.P.(C)No.18782 OF 2018

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second challenge is that Exhibit P4 order is passed by the first

respondent without jurisdiction since the assessment is barred by

limitation as far as it relates to the assessment year 2009-10.

3. Heard the learned counsel for the petitioner and the

learned Government Pleader.

4. On a perusal of Ext.P4 order, it could be seen that the

assessment year is 2009-10. The notice for assessment under

Section 25(1) read with Section 42(3) of the KVAT Act, 2003 was

issued on 20/03/2017, which is after five years as stated in Section

25(1) of the KVAT Act, 2003. In Commercial Tax Officer, Anchal

and others v. S.Najeem and another [2018(4)KHC 666(DB)], a

Division Bench of this Court has held that the period of limitation to

determine tax payable is five years as per Section 25(1) of the

KVAT Act, 2003. Ext.P4 order is passed on 31.03.2018 and the

notice under Section 25(1) of the KVAT Act,2003 was issued only

on 20.03.2017, after 6 years and 11 months from the last date of

the year 2009-10, which is perfectly out of time. As regards

Ext.P4(a) assessment order, the assessment is of the year 2014-

15, which is well within the time. The remedy available to the

petitioner is to file an appeal before the statutory authority. Hence, W.P.(C)No.18782 OF 2018

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I am of the opinion that the writ petition can be disposed of with a

direction to the petitioner to file statutory appeal against Ext.P4(a)

order.

The writ petition is disposed of as follows:-

Ext.P4 order passed by the first respondent is set

aside. As against Ext.P4(a) order, the petitioner, if so advised,

may file an appeal along with petition for condonation of delay and

petition for stay, before the competent appellate authority within a

period of one month from the date of receipt of a copy of this

judgment. If the petitioner files appeal and petitions as above, the

appellate authority shall consider and pass orders on the petition

for condonation of delay as well as on the petition for stay, within a

period of one month thereafter, after affording an opportunity of

hearing to the petitioner. The appellate authority shall take a

lenient view while considering the petition for condonation of delay,

taking into account the pendency of the writ petition before this

Court and pass appropriate orders so that the statutory remedy of

appeal is not lost to the petitioner. The first respondent shall not

take any coercive step to recover the amount covered by Ext.P4(a)

order for a period of two months from the date of receipt of a copy W.P.(C)No.18782 OF 2018

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of this judgment. If the petitioner fails to comply with the directions

as above in filing the appeal and petitions, then, the stay of

recovery of Ext.P4(a) granted, shall stand vacated. The petitioner

shall produce a copy of this judgment along with a copy of this writ

petition, before the first respondent.

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE MBS/ W.P.(C)No.18782 OF 2018

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APPENDIX OF WP(C) 18782/2018

PETITIONER'S EXHIBITS EXHIBIT P1 COPY OF ANNUAL RETURN FOR THE YEAR 2009-10 EXHIBIT P2 COPY OF ANNUAL RETURN FOR THE YEAR 2014 - 15 EXHIBIT P2(a) COPY OF NOTICE DATED 20.03.2017 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 25 (1) FOR THE YEAR 2014 -

EXHIBIT P3 COPY OF REPLY DATED 08.11.2017 FILED IN RESPECT OF EXT. P2 EXHIBIT P3(a) COPY OF REPLY DATED 20.03.2018 FILED IN RESPECT OF EXT. P2(A) EXHIBIT P4 COPY OF ORDER DATED 31.03.2018 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2009 - 10 EXHIBIT P4(a) COPY OF ORDER DATED 31.03.2018 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2014 - 15 EXHIBIT P5 COPY OF INTERIM ORDER DATED 13.04.2018 ISSUED BY THIS COURT IN W.P.(C) NO. 13552 OF 2018.