Kerala High Court
M/S Gma Designers & Builder(P) Ltd vs State Of Kerala on 4 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
WP(C) NO. 10314 OF 2021
PETITIONER:
M/S. MALABAR WATCHES (P) LTD,
RAM MOHAN ROAD, KOZHIKODE, REPRESENTED BY ITS DIRECTOR,
MR.ZIBIN ALI HASSAN.
BY ADVS.
K.P.ABDUL AZEES
SMT.SHOBA ANNAMMA EAPEN
SHRI.AKHIL SURESH
SMT.T.ARCHANA
RESPONDENTS:
1 THE DEPUTY COMMISSIONER,
SPECIAL CIRCLE I, STATE GOODS AND SERVICE TAX DEPARTMENT,
KOZHIKODE - 673 006.
2 THE COMMISSIONER,
STATE GOODS AND SERVICE TAX DEPARTMENT,
THIRUVANANTHAPURAM - 695001.
3 STATE OF KERALA,
REPRESENTED BY SECRETARY(TAXES),
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
ADV, THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2023 ALONG WITH WP(C)NOS.42375/22 & 42525/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
WP(C) NO. 42375 OF 2022
PETITIONER:
M/S GMA DESIGNERS & BUILDERS PVT LIMITED
CIN:U45200KL2011PTC.28627, T.C.13/109,
PETTAH P.O., THIRUVANANTHAPURAM - 625 024,
REPRESENTED BY ITS DIRECTOR, RAVINDRA GEORGE PEREIRA.
BY ADVS.
G.HARIKUMAR (GOPINATHAN NAIR)
AKHIL SURESH
ANU BALAKRISHNAN NAMBIAR
ATHUL M.V.
RESPONDENTS:
1 THE STATE TAX OFFICER (WORKS CONTRACT),
KSGST DEPARTMENT (KERALA STATE GOODS AND
SERVICE TAX DEPARTMENT), 2ND FLOOR, TAX TOWER,
KARAMANA PO, THIRUVANANTHAPURAM - 695 002.
2 ASSISTANT COMMISSIONER (INTELLIGENCE),
OFFICE OF ASSISTANT COMMISSIONER OF STATE TAX
(INTELLIGENCE), MOBILE SQUAD NO. IV, STATE GST
DEPARTMENT(GOODS AND SERVICE TAX DEPARTMENT),
NEW PUBLIC OFFICE BUILDINGS,
'C' BLOCK, OPPOSITE MUSEUM,
THIRUVANANTHAPURAM - 695 033.
3 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO TAXES,
SECRETARIAT, MAIN BLOCK, THIRUVANANTHAPURAM - 695 001.
ADV. THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2023, ALONG WITH WP(C) NOS.10314/2021 & 42525/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
WP(C) NO. 42525 OF 2022
PETITIONER:
M/S GMA DESIGNERS AND BUILDERS PVT LTD
ANJISHA, TC13/109(2), KANNAMMOOLA,
PETTAH PO, THIRUVANANTHAPURAM - 695 024.
REP BY ITS DIRECTOR.
BY ADVS.
G.HARIKUMAR (GOPINATHAN NAIR)
AKHIL SURESH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,TAXES DEPARTMENT,
GOVERNMENT SECRETRAIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE STATE TAX OFFICER (WORKS CONTRACT)
STATE GOODS AND SERVICE TAX DEPARTMENT,
2ND FLOOR, KARAMANA,
THIRUVANANTHAPURAM - 695 002.
3 THE DEPUTY COMMISSIONER (WORKS CONTRACT),
TAX TOWERS, 2ND FLOOR, KARAMANA,
THIRUVANANTHAPURAM, PIN - 695 002
ADV. THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.01.2023, ALONG WITH NOS.10314/2021 &
42375/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
4
JUDGMENT
The petitioner in W.P(C)No.10314/2021 challenges an
order of assessment for assessment year 2013-14 under the
provisions of the Kerala Value Added Tax Act, 2003. The
petitioner in W.P(C)No.42375/2022 challenges an order of
penalty issued under the provisions of the Kerala Value Added
Tax Act, 2003 for assessment year 2014-15, while the
petitioner in W.P(C)No. 42525/2022 (same petitioner as in
W.P(C)No.42375/2022) challenges the order of assessment for
assessment year 2014-15 under the provisions of the Kerala
Value Added Tax Act, 2003. The main ground of challenge
raised in these writ petitions is the assessment / penalty
proceedings are time barred. It is also submitted that the
issues stand covered in favour of the petitioners by the
judgments of this Court in State Tax Officer, Ernakulam &
Others V. Baiju A.A. & Others [Manu/KE/2522/2022] and
MCP Enterprises and Ors. V. State of Kerala and Others
[2020(2) KLT 295].
2. Heard the learned counsel for the petitioner in these
cases and the learned Senior Government Pleader for the
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
respondents.
3. In the judgment in W.P(C)No.42480/2022 and
connected cases, I have considered an identical issue and held
as follows:
"3. Learned counsel appearing for the petitioner in
these petitions would submit that the issue as to whether
the penalty could have been imposed is also a subject
matter of the decision of this Court in MCP Enterprises
and Ors. V. State of Kerala and Others [2020(2) KLT
295].
4. Learned Senior Government Pleader would
submit that since the question as to whether the orders of
assessment and penalty have been issued beyond the
time specified in Section 25(1) of the KVAT Act has to be
determined at least at the first instance by the concerned
officer.
5. Considering the fact that the issues appear to be
covered by the law laid down in Baiju A.A (supra) and
MCP Enterprises(supra), the imped
assessment/penalty orders in these cases are set aside
and the matters are remanded for the consideration of
the 1st respondent, who shall consider the question as to
whether the orders of assessment and the orders
imposing penalty can be justified in terms of the law laid
down by this Court in Baiju A.A (supra) and MCP
Enterprises (supra). The 1st respondent shall
endeavour to pass fresh orders, after taking into
consideration the decisions referred to above, within a
period of two months from the date of receipt of a
certified copy of this judgment. The petitioner shall mark
appearance before the 1st respondent at 11.00 AM on
09.01.2023 either in person or through the authorised
representative. The 1st respondent shall, thereafter, pass
fresh orders as directed above and within the time
specified above.
These writ petitions stand disposed of with the
aforesaid directions."
Therefore, the orders of assessment and the orders
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
imposing penalty impugned in these cases are quashed and
the matters are remanded to the files of the competent officer
for reconsideration after taking note of the judgments referred
to above. The petitioner in W.P(C)No.10314/2021 shall appear
before the 1st respondent in that case either in person or
through the authorized representative at 11.00A.M on
09.1.2023. The matter shall thereafter be reconsidered and
fresh orders shall be passed within a period of two months
thereafter. The common petitioner in W.P(C)No.42375/2022 and
42525/2022 shall appear before the 2 nd respondent in those
cases at 11.00A.M on 09.01.2023 either in person or through
the authorized representative. The matter shall be
reconsidered by the 2nd respondent and fresh orders shall be
passed as directed above, within a period of two months from
the date of receipt of a certified copy of this judgment.
These writ petitions will stand disposed of as above.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
APPENDIX OF WP(C) 10314/2021
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF NOTICE NO.
32110293172/2013-14 DATED 17.03.2020
ISSUED BY THE DEPUTY COMMISSIONER,
SPECIAL CIRCLE -1, STATE GOODS AND
SERVICE TAX DEPARTMENT, KOZHIKODE.
EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER NO.
32110293172/2013-14 DATED 25.03.2021
PASSED BY THE DEPUTY COMMISSIONER,
SPECIAL CIRCLE 1, STATE GOODS AND
SERVICE TAX DEPARTMENT, KOZHIKODE.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WP(C) NO.
13815/2020 DATED 22.09.2020 OF THIS
HONOURABLE COURT.
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
APPENDIX OF WP(C) 42375/2022
PETITIONER EXHIBITS
Exhibit p1 TRUE COPY OF NOTICE U/S 67 (1) DATED
04.12.2020.
Exhibit p2 TRUE COPY OF REPLY DATED 09.01.2021.
Exhibit P3 TRUE COPY OF ORDER NO.-CR-VAT/SQ.1V/20-
21 (2014-15) DATED 17.02.2021
Exhibit P4 TRUE COPY OF THE PRE-ASSESSMENT NOTICE
DATED 15.03.2021 UNDER SEC. 25(1) OF
THE KVAT ACT FOR THE YEAR 2014-15
Exhibit P5 TRUE COPY OF THE DETAIL REPLY DATED
24.03.2021 AGAINST EXBT-P4 NOTICE FOR
2014-15.
Exhibit P6 TRUE COPY OF ORDER NO.
32011305096/2014-15 DATED 26.03.2021
Exhibit P7 A TRUE COPY OF THE JUDGMENT IN BHIMA
JEWELLERY AND DIAMONDS P. LTD. VS. THE
ASSISTANT COMMISSIONER OF SALES TAX AND
OTHER IN W.P(C) NO. 13815 OF 2020 DATED
22.09.2020
WP(C)NOS 10314/2021, 42375/2022 & 42525/2022
APPENDIX OF WP(C) 42525/2022
PETITIONER EXHIBITS
Exhibit p1 THE TRUE COPY OF THE PRE-ASSESSMENT
NOTICE NO. 32011305096/14-15 DATED
15.03.2021 ISSUED U/S 25(1) OF THE KVAT
ACT FOR THE YEAR 2014-2015 BY 3RD
RESPONDENT TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE DETAIL REPLY DATED
24.03.2021 AGAINST EXBT- P1 NOTICE FOR
2014-15 FILED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE ASSESSMENT ORDER NO.
32011305096/2014-15 DATED 26.03.2021
PASSED U/S 25(1) OF THE KVAT ACT.
Exhibit P4 A TRUE COPY OF THE JUDGMENT IN BHIMA
JEWELLERY AND DIAMONDS P. LTD. VS. THE
ASSISTANT COMMISSIONER OF SALES TAX AND
OTHER IN W.P(C) NO. 13815 OF 2020
