Kerala High Court
The Deputy Commissioner -Iii vs B. Mohanachandran Nair on 3 November, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 1757 OF 2020
AGAINST THE JUDGMENTWP(C) 21510/2020 OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DEPUTY COMMISSIONER -III, SPECIAL CIRCLE, STATE
GOODS AND SERVICES TAX DEPARTMENT, KOLLAM 691 002.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.
BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN
RESPONDENT/S:
B. MOHANACHANDRAN NAIR PROPRIETOR, MS. PRASANTHI
CASHEW COMPANY, MANGAD, KOLLAM.
BY ADV HARISANKAR V MENON
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.15/2021, 22/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 15 OF 2021
AGAINST THE JUDGMENTWP(C) 21506/2020 OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DEPUTY COMMISSIONER-III, SPECIAL CIRCLE, STATE GOODS AND
SERVICES TAX DEPARTMENT, KOLLAM-691002.
2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES
DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.
BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN
RESPONDENT/S:
PRASANTHI CASHEW COMPANY PVT LTD, MANGAD, KOLLAM,
REPRESENTED BY ITS MANAGING DIRECTOR, B.MOHANACHANDRAN
NAIR.
BY ADV HARISANKAR V MENON
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 22 OF 2021
AGAINST THE JUDGMENT WP(C) 23283/2020 OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE TAX OFFICER(WORKS CONTRACT), STATE GOODS AND
SERVICES TAX DEPARTMENT, MATTANCHERRY, KOCHI 682 002
2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001
BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN
RESPONDENT/S:
MARTIN GEORGE, AGED 49 YEARS, BUILDING NO. VI/114 KACHAPILLY
HOUSE, ANGAMALY SOUTH P.O, ERNAKULAM 683585
BY ADV HARISANKAR V MENON
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 24 OF 2021
AGAINST THE JUDGMENTWP(C) 20799/2020 OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE TAX OFFICER (WORKS CONTRACT),STATE GOODS AND
SERVICES TAX DEPARTMENT,MATTANCHERRY,ERNAKULAM - 682 002.
2 STATE OF KERALA,REPRESENTED BY ITS SECRETARY,TAXES
DEPARTMENT,GOVT. SECRETARIAT,THIRUVANANTHAPURAM695 001.
BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN
RESPONDENT/S:
ROOPAM CONSTRUCTIONS
EDAYAPURAM ROAD, ASOKAPURAM P.O., ALUVA - 683 101,
REPRESENTED BY ITS MANAGING PARTNER SRI.V.S.MYTHEEN.
BY ADVS.SRI.HARISANKAR V. MENON,SMT.MEERA V.MENON
SMT.K.KRISHNA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 1711 OF 2020
AGAINST THE JUDGMENTWP(C) 24438/2020 OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE TAX OFFICER (WC), STATE GOODS AND SERVICES TAX
DEPARTMENT, ERNAKULAM-682 018
2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES
DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM,PIN-
695 001
BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN
RESPONDENT/S:
V.C.CONSTRUCTIONS, VANACHIRACKAL HOUSE, XIII/294,
KANGARAPADY, THRIKKAKKARA ,KOCHI-682 021, REPRESENTED BY ITS
MANAGING DIRECTOR, YEJO JOHN
BY ADV HARISANKAR V MENON
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
WA NO. 1709 OF 2020
AGAINST THE JUDGMENTWP(C) 21135/2020 OF HIGH COURT OF KERALA
APPELLANT/S:
1 ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, STATE
GOODS AND SERVICE TAX DEPARTMENT, KOLLAM-691 002
2 STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES
DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001
BY SR GOVERNMENT PLEADER V K SHAMSUDHEEN
RESPONDENT/S:
TARA EXPORTS, NO.11,MUSALIAR NAGAR, 2ND MILE STONE,
KILIKOLLOR ,P.O.KOLLAM-691 004, REPRESENTED BY ITS MANAGING
PARTNER, NARAYAN BHARATHAN
BY ADV HARISANKAR V MENON
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG
WITH WA.1757/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
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JUDGMENT
[WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020,
1709/2020]
S.V. Bhatti, J.
Heard Mr V K Shamsudheen, learned Senior Government
Pleader and Mr Harisankar V Menon for parties.
2. A common identical question arises for consideration
in the subject appeals. The State Goods and Services Tax (SGST)
Department, represented by its Officers/Revenue is the
appellant. The respondents are individual and independent
dealers registered under the KVAT Act. The judgment under
appeal reads as follows:
"It is agreed by the Counsel on either side that the issue
involved in this writ petition is squarely covered in favour of
the petitioner by the decision of this Court in Baiju A A and
others v. State Tax Officer [2020 (1) KHC 39]. Accordingly,
following the said judgment, the writ petition is allowed by
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
quashing Ext.P2 assessment order with consequential reliefs to
the petitioner."
3. Mr Shamsudheen appearing for the appellants,
contends that in the batch of appeals the applicability of the
principle laid down in Baiju A A v. State Tax Officer1 arises in
the circumstances in each one of the cases. The notice issued
under Section 25 of the KVAT Act is well within the period of
limitation for issuing a re-assessment notice under Section 25(1)
of the KVAT Act. Without mincing any expression, the learned
counsel fairly states that for want of instructions or proper
verification the appellants' counsel consented to disposing of
the writ petitions by following the principle laid down in Baiju
A A Case. Statement by the counsel appearing for both parties
ignores a crucial test considered by this Court in Commercial
2019 (27) KTR 119 (Ker.)
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
Tax Officer v. Najeem2 and Baiju A A, namely with the expiry of
5 year period of limitation on the completion of 31.03.2017, a
right is said to have been accrued in favour of dealers from the
rigour or ordeal of reassessment. Therefore, as the Amended
Act is made effective from 01.04.2017, notice under Section 25 of
the KVAT Act could not be issued. To fit his argument it is
stated, that the 5-year period expires by 31.03.2017 up to the
Assessment Year 2011-12. Section 25(1) of the KVAT Act, as
amended with effect from 01.04.2017, reads thus:
"(3) in section 25, in sub-section (1), -
(i) for the words "five years", the words "six years" shall be
substituted;
(ii) for the third proviso, the following proviso shall be
substituted, namely:
"Provided also that the period for proceeding to determine any
assessment including those subjected to extension under
section 25B which expires on 31st March 2017, shall be
2018 (3) KLT 877
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
extended up to 31st March, 2018.";
4. In the cases on hand one has to examine whether the
notices issued are within the period of limitation stipulated by
the amended provision and also before a right accrued in favour
of the dealer. Even assuming that Baiju A A case was confirmed
by a Division Bench of this Court, to which one of us (Justice S V
Bhatti) was a party, still, if the notice was issued within the
period of limitation, then it cannot be quashed by referring to
the principles laid down in Baiju A A case. The following table
was commended for clarity on the period within which the
notice has to be issued.
WA No Year 5 year only 6 year only Notice issued on
1757/20 2014-15 31.03.20 31.03.21 25.06.2020
1709/20 2013-14 31.03.19 31.03.20 03.02.2020
15/21 2014-15 31.03.20 31.03.21 25.06.2020
1711/20 2014-15 31.03.20 31.03.21 15.06.2020
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
22/21 2013-14 31.03.19 31.03.20 19.02.2020
24/21 2013-14 31.03.19 31.03.20 23.01.2020
Therefore, he prays for setting aside the judgment under
appeal.
5. The learned counsel appearing for the respondents
does not dispute the dates referred to above, but the argument
in support of judgment under appeal is that the judgments in
Baiju A A case and judgment dated 22.08.2022 in W.A.
No.48/2020, have held that the Amending Act is applicable from
01.04.2017. Therefore, it is argued that the amendment since is
prospective and would not be applicable to the subject
Assessment Years. We are afraid the said argument, firstly, is
against the well-established principles of construction on
whether a Statute is prospective or retrospective, and, secondly,
against the very dictum considered and laid down by this court
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
in the decisions referred to above.
6. Illustratively stated, in W.A. No.1709 of 2020 the
dealer is served with a reassessment notice for the year 2013-14.
According to the unamended period of limitation, the
Department has jurisdiction to issue a reassessment notice on
or before 31.03.2020. The period of limitation is changed with
effect from 01.04.2017. Therefore, as on the date, when the
period is enlarged from 5 years to 6 years, the dealer does not
have a vested right or accrued interest vis-à-vis the
reassessment procedure under Section 25.
6.1 When the provision is amended enhancing the period
of limitation from 5 years to 6 years, the issuance of notice is
well within the jurisdiction, and no exception could be taken.
The argument of the respondents is accepted by this Court then,
the amendment made through Finance Act 11/2017 is made
WA Nos.1757/2020, 15/2021, 22/2021, 24/2021, 1711/2020, 1709/2020
more prospective than what is intended by the Legislature and
the judgments of this Court. The subtle attempt made to
sustain the judgments under appeal does not find favour with
us for the above reasons. Hence, the judgments under appeal
are set aside. The dealers/respondents herein are given liberty
to file appeal before the Appellate Authority by enclosing a copy
of the judgment within four weeks from today. The delay
occasioned during the pendency of the appeal and the writ
petition is excused. The appeals if filed shall be numbered, be
heard on merits, and disposed of in accordance with law.
Appeals are allowed.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE
jjj
