Fab India Overseas (P) Ltd vs Asst.Commissioner
2023 Latest Caselaw 8206 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
       TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
                           WP(C) NO. 26 OF 2017
PETITIONER/S:

           FAB INDIA OVERSEAS (P) LTD.
           THAMARAPPALLY HOUSE, 39/4749, OLD THEVARA ROAD,
           RAVIPURAM, KOCHI-682016. REPRESENTED BY ITS AUTHORISED
           SIGNATORY VIJAYAMBIKA S.

           BY ADVS.
           SRI.S.ANIL KUMAR (TRIVANDRUM)
           SRI.K.S.HARIHARAN NAIR



RESPONDENT/S:

           ASST.COMMISSIONER
           COMMERCIAL TAXES, SPECIAL CIRCLE-II, THEVARA, KOCHI-682015.

           BY GOVERNMENT PLEADER MS RASMITHA RAMACHANDRAN


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.26/2017
                                    -2-




                        JUDGMENT

The present writ petition under Article 226 of the

Constitution of India has been filed for quashing Ext.P4

assessment order dated 13.10.2016, passed by the Assistant

Commissioner, Special Circle, Ernakulam. The Assessment

Year is 2010-11.

2. As per Section 25(1) of the KVAT Act 2003, the

assessment proceedings ought to have been completed within

five years i.e., on or before 31.03.2016. By Finance Act 2017,

Section 25(1) has been added whereby one-year further time

has been granted for completion of assessment with the

approval of the Deputy Commissioner. In this case, the notice

for reopening the assessment is dated 08.08.2016. Admittedly,

the said notice was issued beyond five years i.e., which expired

on 31.03.2016. The Finance Act 2017 has come into force with W.P.(C) No.26/2017

effect from 01.07.2017. When the notice dated 08.08.2016 came

to be issued at that time, the extended period of one year was

not available to the Department inasmuch as the Finance Act

2017 did not provide for retrospective operation.

I find that the notice dated 08.08.2016 and the re-

assessment order Ext.P4 dated 13.10.2016 are beyond the

period of limitation of five years and, therefore, are illegal.

Ext.P4 is therefore set aside. The present writ petition is

therefore allowed.

Sd/-

DINESH KUMAR SINGH JUDGE

jjj W.P.(C) No.26/2017

APPENDIX OF WP(C) 26/2017

PETITIONER EXHIBITS

EXHIBIT P1: COPY OF ANNUAL RETURN FOR THE YEAR 2010-2011.

EXHIBIT P1(A): COPY OF ASSESSMENT ORDER DATED 29.6.2012 FOR THE YEAR 2010-2011.

EXHIBIT P2: COPY OF NOTIC DATED 8.8.2016 ISSUED BY THE RESPONDENT FOR THE YEAR 2010-2011 U/S 25.

EXHIBIT P3: COPY OF REPLY DATED 24.9.2016 FILED BY THE PETITIONER AGAINST EXT.P2.

EXHIBIT P4: COPY OF ASSESSMENT ORDER DATED 13.10.2016 ISSUED BY THE RESPONDENT FOR THE YEAR 2010- 2011.