VIJAY CONSTRUCTIONS Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) The petitioner, a partnership firm, through the instant writ petition has challenged the assessment orders dated 20.3.2017 for the assessment years 2009-10 and 2010-11. As per the averments the petitioner submitted returns for the aforementioned assessment years vide Exts.P1 and P2. Petitioner on compounded works remitted the tax due under the return. On 24.3.2017, received assessment orders from the 2nd respondent for the year 2009-10 and 2010-11, Exts.P3 and P4. As per the averments, 2 nd respondent issued notices under Section 25(1) read with Section 42(2) (b) dated 22.2.2017 through e-mail to the e-mail ID of the petitioner, which was served on 25.2.2017 and an opportunity for personnel hearing was granted for 10.3.2017. Petitioner appeared before the 2nd respondent on 9.3.2017 and sought explanation with respect to the Audit Report for the year 2011-12.

(2.) Learned counsel for the petitioner submitted that the proceedings for the assessment under Section 25(1) were initiated after the period of limitation provided ie., 5 years as the amendment in 2017 increasing the period from 5 to 6 years is prospective in nature. In support of the aforementioned contention, judgment of this Court in MCP Enterprises (M/s.) and Others v. State of Kerala and Others (2020 (1) KHC 127) has been referred whereby provisions of Section 42(3) of Kerala Value Added Tax Act, 2003 were also dealt in extenso. It was held Section 42 of the Act was amended through a Notification dated 13.11.2016 with retrospective effect from 1.4.2005. Even if there is no limitation for taking action under Section 42(3), the limitation as prescribed in the provisions of Section 25(1) was to be taken and accordingly the notices qua assessment orders were quashed being barred by limitation.

(3.) On other hand, Learned Government Pleader submits that it is not a simple case of assessment under Section 25(1) of 2003 Act. Section 42(3) of the Act provides that if any assessee fails to file any audited accounts referred to in sub Section 1 or annual return, annexures, statements, certificates, details of sale and purchase, the assessment for the relevant year for the purposes of Section 25 shall be treated as pending and time limit mentioned therein shall not be applicable in such cases. In support of the aforementioned contention, he relied upon the Division Bench judgment of this Court in Assistant Commissioner (Assessment) v. Grasim Industries Ltd . (2006 (1) KLT 821) and unreported judgment in Johnson Plastics v. Intelligence Officer (O.P No .8290 of 2003) dated 22.11.2007 and urgeg this Court for dismissal of the writ petition.