2019 (5) TMI 647 - HC - VAT and Sales Tax

Limitation for finalization of assessment - year 2010-2011 - time limitation provided u/s 25 (1) of the Kerala Value Added Tax Act 2003 - writ dismissed following a decision - HELD THAT - Learned counsel for the appellant contended that the judgment in SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1 AND OTHERS 2019 (2) TMI 300 - KERALA HIGH COURT covers only the question of validity of Section 174 of the KSGST Act. It is pointed out that the learned Single Judge had omitted to consider and decide the challenge raised based on the question of limitation u/s 25 (1) of the KVAT Act. The above fact is not disputed by the learned Special Government Pleader (Taxes) appearing for the respondents. Therefore we are of the considered opinion that a remittance of the writ petition for fresh consideration and disposal on the question raised other than the validity of Section 174 of the KSGST Act would suffice to meet the ends of justice. - petition allowed by way of remand.

Summary

Issues Involved:
Challenge to Ext.P1 notice of preassessment for the year 2010-2011 under Section 25(1) of the KVAT Act and validity of Section 174 of the KSGST Act.

Analysis:

1. The appellant challenged the Ext.P1 notice of preassessment issued for the year 2010-2011, contending that the assessment remains barred by limitation as per Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). Additionally, the appellant raised a challenge on the validity of Section 174 of the Kerala State Goods and Services Tax Act (KSGST Act), alleging it to be violative of constitutional provisions. The writ petition was dismissed along with other cases, citing a previous judgment that went against the petitioner.

2. The appellant's counsel argued that the previous judgment only covered the validity of Section 174 of the KSGST Act, highlighting that the challenge based on the limitation under Section 25(1) of the KVAT Act was not addressed. The Special Government Pleader representing the respondents did not dispute this fact. Consequently, the court concluded that a remittance of the writ petition for fresh consideration on the unresolved issue of limitation would serve the interests of justice.

3. As a result, the writ appeal was allowed, setting aside the impugned judgment in W.P (C) No.38423/2018. The writ petition was restored for fresh decision by the Single Judge specifically on the question of limitation under Section 25(1) of the KVAT Act, distinct from the validity of Section 174 of the KSGST Act. The Registry was directed to post the writ petition before the relevant Single Judge for further proceedings.

4. The court clarified that the appellant had the liberty to approach the Single Judge seeking a stay against any assessment that may have been finalized following the initial dismissal of the writ petition. This provision ensured the appellant's rights were protected pending the fresh decision on the unresolved issue of limitation under the KVAT Act.