Where assessee challenged constitutional validity of Section 174 of KSGST Act, 2014 along with assessment proceeding initiated under Kerala VAT Act but Single Judge dismissed writ following a Judgment of High Court which was only with respect to constitutional validity of section 174, writ petition was remitted to Single Judge for consideration of issue other than Section 174.
Where assessee challenged constitutional validity of Section 174 of KSGST Act, 2014 along with assessment proceeding initiated under Kerala VAT Act but Single Judge dismissed writ following a Judgment of High Court which was only with respect to constitutional validity of section 174, writ petition was remitted to Single Judge for consideration of issue other than Section 174.
Assessment of escaped turnover — Challenge of levy and constitutional validity — Assessee filed writ petition challenging assessment proceedings initiated against it on ground that same was beyond time limit stipulated under section 25(1) of the Kerala Value Added Tax Act, 2003 — Inter alia, assessee also challenged constitutional validity of Section 174 of Kerala State Goods and Services Tax Act, 2017 — Single Judge dismissed petition with a batch of other cases by holding that issue involved stood covered against assessee through judgment in Sheen Golden Jewels (India) Pvt. Ltd. v. State Tax Officer [WP(C) No.11335 of 2018, dated 11.01.2019] — Held, judgment relied upon by Single Judge pertained only with respect to validity of Section 174 of Kerala State Goods and Services Tax Act, 2017— In such circumstances, writ petition remitted to Single Judge for consideration of issue other than Section 174 of Kerala State Goods and Services Tax Act, 2017— Order of single judge set aside — Appeal allowed.
1. Petitioner in W.P.(C) No.28346 of 2018 is the appellant herein challenging the judgment dismissing the writ petition. Respondents herein are the respondents in the writ petition.
2. Ext.P1 order of assessment with respect to the year 2008-09 was challenged in the writ petition mainly contending that the proceedings was initiated beyond the time limit stipulated under Section 25(1) of the Kerala Value Added Tax Act,2003[KVAT Act] inter alia the petitioner challenged constitutional validity of Section 174 of the Kerala State Goods and Service Tax Act, 2017 [KSGST Act]. The writ petition was dismissed by holding that the question remains squarely covered against the petitioner through the judgment in W.P.(C)No.11335 of 2018 and connected cases dated 11th January, 2019.
3. Learned counsel for the appellant submitted that the question decided in W.P.(C) No.11335 of 2018 and connected cases relates only with respect to constitutional validity of Section 174 of KSGST Act. It is pointed out that the learned Single Judge had omitted to consider the contention raised based on the question of limitation under Section 25(1) of the KVAT Act. The above aspect is fairly conceded by the learned Special Government Pleader(Taxes). It is also conceded that, from the judgment in W.P.(C) No.11335 of 2018 and connected cases, a lot of writ appeals are admitted and pending disposal before this Court.
4. We are of the considered opinion that, the questions raised other than the validity of Section 174 of the KSGST Act need to be considered by the learned Single Judge of course the validity of Section 174 will depend upon the final outcome of the writ appeals which are pending. Hence we are of the opinion that a remand of the writ petition for a fresh disposal would suffice to meet the ends of justice.
5. Hence the above appeal is allowed. The impugned judgment in W.P.(C)No.28346 of 2018 is hereby set aside. The Registry is directed to restore the writ petition and post the same before the learned Single Judge dealing with the subject matter as per the roster, for fresh consideration and disposal as directed above. Interim order of stay, if any, existed as on the date of dismissal of the writ petition will stand revived and shall continue to be in force.
Sd/-
C.K.ABDUL REHIM
JUDGE
Sd/-
R. NARAYANA PISHARADI
JUDGE
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Where assessee challenged constitutional validity of Section 174 of KSGST Act, 2014 along with assessment proceeding initiated under Kerala VAT Act but Single Judge dismissed writ following a Judgment of High Court which was only with respect to constitutional validity of section 174, writ petition was remitted to Single Judge for consideration of issue other than Section 174.
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