9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (2) TMI 300 - HC - GSTConstitutionality of section 174 of KGST Act and 101st Constitutional Amendment - Jurisdiction - power to enact section 174 of KGST Act - amendment to Entry 54 of List II - the assertion mainly comes from 101st Constitutional Amendment that is the attenuated or modified Entry 54 of List-II, the State List - Does the State have the legislative competence to enact section 174 and save the past taxation events-comprising levy, and recovery-when Entry 54, List II, which is the field of legislation empowering the State, stood omitted permanently with effect from 16.09.2017? - repeal of statutes - transitional provisions. Held that - With the Entry 54 of List II unavailable for the State to incorporate Section 174 of KSGST Act, the whole saving mechanism vis-a-vis transactions before 16-09-2017 crumbles - it is fallacy on the petitioner's part to content that the State lacks the legislative power to enact Section 174 of KSGST Act. Article 246A is the special provision on the GST. It empowers both the Union and the State, for the first time, to have simultaneous -not concurrent- powers to legislate on certain items. Indeed concurrency yields to the Doctrine of repugnancy, but simultaneous legislative power does not. That is, both the Legislatures, say one from the Union and other from the State, co-exist-operate in the same sphere subject to other constitutional safeguards. The petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017 - petition dismissed.
Issues Involved:
1. Constitutional Validity of Section 174 of the Kerala State Goods and Services Tax Act, 2017 (KSGST Act). 2. Legislative Competence of the State to Enact Section 174. 3. Application of the General Clauses Act to Repealed State Enactments. 4. Impact of the 101st Constitutional Amendment Act on State Tax Laws. 5. Limitation Period for Assessments under the Kerala Value Added Tax Act, 2003 (KVAT Act). Issue-Wise Detailed Analysis: 1. Constitutional Validity of Section 174 of the KSGST Act: The petitioners questioned the constitutional validity of Section 174, arguing that the State lacked legislative competence to enact this section, which purported to save transactions under the State’s various pre-GST enactments, including the KVAT Act. They asserted that Section 19 of the 101st Constitutional Amendment Act (CA Act) repealed all State laws inconsistent with the GST laws, and thus, the KVAT Act became a "dead letter" from 16.09.2017. The Court held that Section 174 is valid and does not conflict with the CA Act. The State has the power to save past transactions under its pre-GST laws through Section 174. 2. Legislative Competence of the State to Enact Section 174: The petitioners contended that the State was denuded of legislative power to enact Section 174 due to the amendment to Entry 54 of List II. The Court rejected this argument, stating that Article 246A of the Constitution provides simultaneous powers to both the Union and the States to legislate on GST. This simultaneous power does not result in repugnancy, allowing the State to enact Section 174 to save past transactions. 3. Application of the General Clauses Act to Repealed State Enactments: The petitioners argued that Section 6 of the General Clauses Act does not apply to repeals effected by a constitutional amendment. The Court agreed but noted that the State's legislative power under Article 246A allows it to enact Section 174, which serves the purpose of saving past transactions. The Court emphasized that the General Clauses Act is not applicable to state legislation, but the State can still save past transactions through its legislative power. 4. Impact of the 101st Constitutional Amendment Act on State Tax Laws: The petitioners claimed that the CA Act, which introduced GST, effectively repealed the State's power to tax under the unamended Entry 54 of List II. The Court clarified that the CA Act is prospective and does not affect past transactions. Section 19 of the CA Act provided a one-year window for States to amend or repeal inconsistent laws. The State utilized this period to enact Section 174, thereby saving past transactions under the KVAT Act. 5. Limitation Period for Assessments under the KVAT Act: The petitioners argued that the assessments for the years 2010-2011 and 2011-2012 were time-barred as they were initiated beyond the five-year limitation period prescribed under Section 25 of the KVAT Act. The Court did not address the limitation issue directly, stating that it is a mixed question of fact and law that should be addressed through statutory appeals. The Court allowed the petitioners to file appeals within 30 days, and the authorities were directed to entertain these appeals as if filed within the limitation period. Conclusion: The Court upheld the constitutional validity of Section 174 of the KSGST Act, confirming the State's legislative competence to enact it. The Court clarified that the CA Act's transitional provision (Section 19) allowed the State to save past transactions through Section 174. The limitation issue was left open for statutory appeals, providing the petitioners an opportunity to contest the assessments within a specified period.
|
