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TMI Blog2019 (6) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant to point out the same before the recovery authorities and to seek set off. Appeal dismissed. - Writ Appeal No. 762 OF 2019 - - - Dated:- 14-3-2019 - MR C. K. ABDUL REHIM AND MR R. NARAYANA PISHARADI, JJ. For The APPELLANT : ADV. SRI. S. A. RAZZACK For The RESPONDENTS : SR GP SRI. MOHAMMED RAFIQ JUDGMENT Abdul Rehim , J . The petitioner in W.P (C) 392352/2017 is challenging judgment of the Single Judge dismissing the writ petition, dated 22nd February 2019. The respondents in the writ petition are the respondents herein. 2. Issue pertains to correctness of the assessment made against the appellant under the Kerala General Sales Tax Act (for short the 'KGST Act'). Exhibit P13 steps initiated for recovery of the tax assessed with respect to the year 2000-2001 was under challenge in the writ petition. Contention was that, Ext.P10 order of assessment with respect to the year concened was barred by limitation, as per the proviso to Section 17 (6) of the KGST Act, as amended by Finance Act, 2005 (Act 10 of 2005). Exhibit P12 is a consoli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the order passed by the Appellate Authority. With respect to the assessment year 2000-2001, as observed above, the appellant had failed in the statutory appeal. Consequential demand after disposal of the appeal was made as early as in the year 2009. It is evident from Ext.P13 that the liability with respect to years 1999-2000 and 2000-2001 were recommended for realization through revenue recovery steps and the appellant had remitted part of the tax amount assessed with respect to the year 1999-2000. Ext.P13 demand notice was issued on 03.06.2017 for collecting the balance amount due, pursuant to the above said orders. The present writ petition was filed challenging Ext.P13. 4. Even though various contentions are raised in the writ petition as well as in the memorandum of appeal, the only ground pressed before the learned Single Judge was that, the assessment with respect to the year 2000 - 2001 was completed beyond the period of limitation stipulated under Section 17(6) of the KGST Act. With respect to the year 1999 - 2000, challenge was on the basis that exempted commodities were also included as taxable items. The contentions raised based on Exts.P7 and P8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contended by the petitioner on 04.09.2006. Referring to the proviso added to Section 17(6) through Finance Act, 2005, it was found that the statute provide liberty to the assessing authority to complete the assessment with respect to the year 2000-2001 on or before 31.03.2006. Since the assessment was completed on 28.03.2006 it was found to be within the time limit provided by virtue of the Finance Act, 2005, which incorporated the fifth proviso to Section 17(6). Hence the contention that Ext.P10 order of assessment with respect to the year 2000-2001 was issued beyond the time limit, was rejected. It was further found in the impugned judgment that the appellant cannot be permitted to raise the question of limitation for the first time in the writ petition without raising such a question before the assessing authority. Hence the writ petition was dismissed. 8. With respect to the question of maintainability of the writ petition, Sri. S.A. Razzak learned counsel appearing for the appellant raised a contention that the order of assessment will become a nullity in the eye of law and therefore it has to be construed as an order passed without jurisdiction. Hence, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that it has acted beyond its jurisdiction. It is held that the courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullity. 9. In view of the principle discussed as above, we do not think that based on the contention of limitation raised, the appellant is entitled to challenge the order of assessment which is confirmed in appeal, at the stage of recovery in a writ petition filed as mentioned above. Since the assessment order has attained finality as confirmed by the appellate authority, we are of the opinion that the challenge now raised against the assessment by raising a plea of limitation cannot be held as maintainable. Hence we are inclined to confirm the findings of the learned Judge in that respect. 10. Dehors the above finding, we are persuaded to consider the contentions raised on the question of limitation with respect to the assessment year 2000 - 2001. Provision contained in Section 17(6) of the KGST Act stipulating a period of five years for completing the assessment, would end only on 31.03.2006. The order of assessment is dated 28.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty had already exercised its power of assessment as on 28.03.2006 and therefore the assessment cannot be treated as pending, as on 31.3.2006. In support of the above contention he placed reliance on a decision of the Hon ble Supreme Court in S.S. Gadgil v. Lal and Co., (AIR 1965 SC 171) . It is held therein that, if the right to commence proceedings for assessment remains ended by virtue of the limitation prescribed, the amending provision will not assist him to commence a proceedings, even though as on the date when the notice was issued, it is within the period provided by that amending Act. The above dictum, according to the learned counsel for the appellant, stands reaffirmed in a later decision of the Hon ble Supreme Court in K.M. Sharma v. Income Tax Officer (2002) 4 SCC 339 . It is held therein that proceedings which have attained finality under the existing law due to bar of limitation cannot be held to be open for revival, unless the amended provision is clearly given retrospective operation so as to allow upsetting of the proceedings which had already been concluded and attained finality. 13. While considering the above contention, we take note of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any rate, there cannot be an intermediary stage in between completion of the assessment and pendency of the assessment. 12. Under the above mentioned circumstances, we do not find any reason to interfere with the findings arrived by the learned Single Judge, because it is to be held that the assessment finalized with respect to the year 2000-2001 is within time. We take note of the fact that, Ext.P13 is a composite notice with respect to the year 1999-2000 also. There is no challenge raised with respect to the said assessment contending question of limitation. The only contention raised against the demand for the said year is that the amounts already paid was not given credit. The appellant had raised a contention that, the appeal referred to in Ext.P3 judgment has not been disposed of and no order in that respect has been communicated to him. In a statement filed on behalf of the respondent it is specifically mentioned that the appellate authority had disposed of the appeal vide order No.808/2004 dated 20.09.2007. The appeal with respect to the year 1999- 2000 stands dismissed. There is no merit in the contention that the revenue recovery steps cannot be pursued w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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