Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 17TH DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 WP(C) NO. 28209 OF 2022 PETITIONER/S: M/S CHOICE CONSTRUCTIONS, IV/432A, P.V SREEDHARAN ROAD, KUMBALAM, KOCHI, 682506, JOSE THOMAS, PROPRIETOR, REPRESENTED BY POWER OF ATTORNEY HOLDER THOMAS JOSE, PIN - 682506 BY ADVS. JAZIL DEV FERDINANTO JOSE JACOB RESPONDENT/S: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVT. OF KERALA, TRIVANDRUM, KERALA, PIN - 695002 2 THE STATE TAX OFFICER (WORKS CONTRACT), O/O THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICE TAX DEPT., STATE GOODS AND SERVICE TAX DEPT COMPLEX PERUMANOOR, KOCHI, PIN - 682015 3 DEPUTY COMMISSIONER (WORKS CONTRACT), OFFICE OF THE JOINT COMMISSIONER, SGST DEPARTMENT, OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI, KERALA, PIN - 4 DEPUTY COMMISSIONER, O/O THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICE TAX DEPT., STATE GOODS AND SERVICE TAX DEPT COMPLEX, PERUMANOOR, KOCHI, PIN - 682015 -2- BY ADV PUBLIC PROSECUTOR OTHER PRESENT: JASMINE M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
JUDGMENT
The present writ petition under Article 226 of the Constitution of India has been filed seeking the following reliefs: “A. issue a Writ of Certiorari or such appropriate writ, direction or order quashing Ext P6 assessment order dated 13.03.2020 passed by Respondent No.2 and Ext P8 rectified
order dated 22.06.2022 passed by Respondent No.3;
B. issue a Writ of Certiorari or such appropriate writ, direction or order declaring that Section 8 (a) (ii) of the KVAT Act is unconstitutional in as much as it provides for levy of tax on goods imported from outside the country during the relevant period; C. pass such other order/orders as may be deemed fit and proper in the facts and circumstances of the case;”
2. Learned Counsel for the petitioner submits that the
issue is covered by the order of the Kerala Value Added Tax Appellate Tribunal (Ext.P10) in respect of the previous four Assessment Years. The Assessing Authority has failed to take -4- notice of the said order in respect of the four Assessment Years. Learned Counsel for the petitioner also submits that the issue is also covered by the judgment of this Court in M/s Choice Constructions v. State of Kerala1 (Ext.P9), which has also not been taken note of by the Assessing Authority.
3. Ms Jasmin M M learned Government Pleader does not dispute this fact.
4. Considering the aforesaid, the present writ petition
is allowed. The impugned Ext.P8 rectified order is quashed. The matter is remanded back to the 3rd respondent to pass fresh orders after taking into consideration the Ext.P9
judgment passed by this Court and the Ext.P10 order passed by
the Tribunal. Sd/- DINESH KUMAR SINGH JUDGE jjj
Judgment dated 30.09.2015 in W.P.(C) No.23440/2015
-5- APPENDIX OF WP(C) 28209/2022 PETITIONER ANNEXURES Annexure1 POWER OF ATTORNEY Exhibit - P1 TRUE COPY OF THE NOTICE DATED 21.12.2018 ISSUED BY RESPONDENT NO.2 UNDER SECTION 25 OF THE KVAT ACT Exhibit - P2 TRUE COPY OF THE REPLY DATED 19.02.2019 FILED BEFORE Exhibit -P3 TRUE COPY OF THE REPLY DATED 18.07.2019 FILED BEFORE Exhibit -P4 TRUE COPY OF THE NOTICE DATED 05.02.2020 ISSUED BY RESPONDENT NO.2 UNDER SECTION 25 OF THE KVAT ACT Exhibit -P5 TRUE COPY OF THE REPLY DATED 26.02.2020 FILED BEFORE Exhibit -P6 TRUE COPY OF THE ORDER DATED 13.03.2020 ISSUED BY RESPONDENT NO.2, COMPLETING THE ASSESSMENT UNDER SECTION 25 OF THE KVAT ACT Exhibit -P7 TRUE COPY OF THE RECTIFICATION APPLICATION DATED 09.09.2020 FILED UNDER SECTION 66 OF THE KVAT ACT BEFORE RESPONDENT NO.2 Exhibit -P8 TRUE COPY OF THE MODIFIED ORDER DATED 25.06.2022 ISSUED BY RESPONDENT NO.3 Exhibit -P9 . TRUE COPY OF THE JUDGEMENT DATED 30.09.2015 IN W.P.(C) NO.23440 OF 2015 Exhibit P10 TURE COPY OF COMMON ORDER DATED 29.09.2023 PASSED
BY THE TRIBUNAL IN TA (VAT) NO 65 OF 2020, TA (VAT) 726 OF 2017, TA (VAT) 727 OF 2020, TA (VAT) 728 OF 2017 AND TA (VAT) 733 OF 2020