Where assessee filed writ petition simultaneously challenging imposition of tax and constitutional validity of provision of section 174 of KSGST Act, 2017 but Single Judge dismissed petition following a Judgment of High Court which was only with respect to constitutional validity of said Section 174 and did not consider grounds raised by assessee other than that, writ petition was restored for fresh consideration by Single Judge.
Where assessee filed writ petition simultaneously challenging imposition of tax and constitutional validity of provision of section 174 of KSGST Act, 2017 but Single Judge dismissed petition following a Judgment of High Court which was only with respect to constitutional validity of said Section 174 and did not consider grounds raised by assessee other than that, writ petition was restored for fresh consideration by Single Judge.
Levy and collection — Challenge of levy and constitutional validity —Assessee filed a writ challenging imposition of tax on sale of medicine in course of treatment done at its hospital — Along with this, assessee had also challenged constitutional validity of section 174 of the Kerala State Goods and Service 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 covered only question of validity of Section 174 of the Kerala State Goods and Service Tax Act, 2017 — In such circumstances, writ petition
remitted to Single Judge for consideration of issue other than Section 174 of the Kerala State Goods and Service Tax Act, 2017 — Order of single judge set aside — Appeal allowed.
1. The petitioner in WP(C) No.41831/2018 is in appeal challenging dismissal of the writ petition. The respondents herein are the respondents in the writ petition.
2. Ext.P3 order of assessment with respect to the year 2014-15 was challenged in the writ petition mainly contending that tax imposed against sale of medicine in the course of treatment done at the appellant's hospital, is bad and unsustainable in view of the settled legal position. Inter alia, the appellant challenged the constitutional validity of Section 174 of the Kerala State Goods and Service Tax Act (KSGST Act) and thereby the sustainability of the impugned assessment.
3. The writ petition was dismissed along with a batch of other cases by holding that the issue involved stands squarely covered against the appellant through the judgment in WP(C) No. 11335/2018 and connected cases, dated 11.01.2019.
4. Learned counsel for the appellant pointed out that, the issue covered by the judgment in WP(C) No. 11335/2018 and connected cases pertains only with respect to the validity of Section 174. It is pointed out that the learned Single Judge had omitted to consider and adjudicate upon other grounds raised in the writ petition.
5. The fact that the judgment in WP(C) No. 11335/2018 covers only the question of validity of Section 174 of the KSGST Act, is conceded by the learned Government Pleader appearing for the respondents. It is further conceded that, agianst the judgment in WP(C) No. 11335/2018 and connected cases, a lot of writ appeals filed are already admitted and is pending disposal before this Court.
6. Under such circumstances, we are of the considered opinion that a remittance of the writ petition for fresh consideration and disposal on the grounds raised other than the validity of Section 174 of the KSGST Act, would serve the ends of justice.
7. Hence, the above writ appeal is hereby allowed. The impugned judgment in WP(C) No. 41831/2018 dated 22.01.2019 is hereby set aside. The writ petition is restored on the files of this Court. The Registry is directed to post the writ petition before the learned Single Judge dealing with the subject matter as per the roster, for fresh consideration and disposal as directed above. Interim stay if any existed as on the date of dismissal of the writ petition shall 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 filed writ petition simultaneously challenging imposition of tax and constitutional validity of provision of section 174 of KSGST Act, 2017 but Single Judge dismissed petition following a Judgment of High Court which was only with respect to constitutional validity of said Section 174 and did not consider grounds raised by assessee other than that, writ petition was restored for fresh consideration by Single Judge.
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