Kerala High Court
M/S. Gtl Infrastructure Ltd vs Asst. Commissioner (Works Contract), ... on 8 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:83313
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 11105 OF 2019
PETITIONER:
M/S. GTL INFRASTRUCTURE LTD.,
PRABHA TOWER, OPP. CHENNAI SILKS, M.G. ROAD, ERNAKULAM,
REPRESENTED BY DINAL BABU K., MANAGER (FINANCE AND
ACCOUNTS)
BY ADV MEERA V.MENON
RESPONDENTS:
1 ASST. COMMISSIONER (WORKS CONTRACT),
DEPARTMENT OF SGST,
CLASS TOWERS, ERNAKULAM, KOCHI-682 018.
2 THE COMMISSIONER OF COMMERCIAL TAXES,
TAX TOWERS, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM-695 002.
3 INSPECTING ASST. COMMISSIONER,
DEPT. OF SGST, KAKKANADU-682 030.
SMT. JASMIN M M (GP)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
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JUDGMENT
The petitioner has approached this Court challenging an
order of assessment issued in respect of the liability of the petitioner
under the Central Sales Tax Act (in short 'the CST Act'). According
to the petitioner, the order is liable to be quashed as the same was
issued beyond the period of limitation prescribed for completion of
assessment under the provisions of the Kerala Value Added Tax Act,
2003 (in short 'the KVAT Act') as made applicable to assessments
under the CST Act.
2. The learned counsel appearing for the petitioner
relies on the Division Bench judgment of this Court in Commercial
Tax Officer and Another v. Fijo Joseph [(2019) 27 KTR 51 (Ker)]
where this Court has taken the view that though no period of
limitation has been prescribed under the provisions of sub-section
(5) of Section 6 of the CST Act, since the assessment has to be
completed in terms of the provisions contained in the KVAT Act, the
limitation as contemplated by the provisions of Section 25(1) of the
KVAT Act will apply to such assessments also.
3. The learned Government Pleader vehemently
opposes the grant of any relief to the petitioner on the basis of the
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judgment of the Division Bench in Fijo Joseph (supra). It is the case
of the learned Government Pleader that the view taken by the
Division Bench in Fijo Joseph (supra) is contrary to the view taken
by the earlier Division Bench in Parisons Foods (P) Ltd., Kozhikode
v. State of Kerala and Another [2017 (3) KHC 371]. The learned
Government Pleader also placed reliance on the judgment of the
Supreme Court in National Insurance Company Limited v. Pranay
Sethi and Others [(2017) 16 Supreme Court Cases 680] to contend
that when the later Division Bench was confronted with the
situation where it was inclined to take a view different from the view
taken by the earlier Division Bench, the proper course would have
been to refer the matter to a Larger Bench. It is submitted that in
such circumstances, the petitioner cannot be granted relief in terms
of the decision of the Division Bench in Fijo Joseph (supra).
4. The learned counsel appearing for the petitioner
would submit in reply that it is not open for the State to now
contend that this Court should not follow the law laid down by the
Division Bench in Fijo Joseph(supra) for the simple reason that the
Division Bench in Fijo Joseph(supra) did not proceed in ignorance
of the decision of the earlier Division Bench and instead referred to
the earlier Division Bench, decision in Parisons Foods (P) Ltd.
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(supra) and yet took a view that the period of limitation would
apply. It is submitted that in such circumstances, the latter Division
Bench judgment is a binding precedent as far as this Court is
concerned and this Court should follow the law laid down in Fijo
Joseph (supra). The learned counsel appearing for the petitioner
also submits that the decision in Parisons Foods (P) Ltd (supra)
may not apply to the facts of the present case as that was a case
where the provisions of Section 6(7) of the CST Act was also
involved.
5. Having heard the learned counsel for the
petitioner and the learned Government Pleader, I am of the opinion
that the petitioner is entitled to succeed. The learned Government
Pleader may be right in contending on the basis of principles laid
down by the Supreme Court in Pranay Sethi and Others (supra)
that the proper course of action for a Bench when confronted with a
decision of a Bench of equal strength and where it proposes to take a
view different from the view taken by the earlier Bench would be to
refer the matter for consideration of a Larger Bench. However, the
fact remains that the Division Bench in Fijo Joseph (supra) noticed
the judgment of the earlier Division Bench and yet proceeded to
take the view that the period of limitation would apply in respect of
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assessments under the CST Act. In that view of the matter as far as
this Court is concerned, the decision in Fijo Joseph (supra)
constitutes a binding precedent.
Accordingly, this writ petition is allowed in the light of the
law laid down by the Division Bench in Fijo Joseph (supra). Ext.P3
order of assessment is quashed on the ground that it is issued
beyond the period of limitation prescribed under the provisions of
the KVAT Act.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 11105 OF 2019
2024:KER:83313
APPENDIX OF WP(C) 11105/2019
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF NOTICE ISSUED BY THE 1ST
RESPONDENT FOR THE YEAR 2011-12 (CST)
EXHIBIT P2 COPY OF REPLY SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P3 COPY OF ORDER ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P4 COPY OF JUDGMENT IN W.A. NO.1333/2017
OF THIS HON'BLE COURT
EXHIBIT P5 COPY OF ORDER IN W.P.(C) NO.8006/2019
OF THIS HON'BLE COURT.
