V2 ASSOCIATES Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, a partnership firm claims to be a registered dealer under the Kerala Value Added Tax Act, (for short "KVAT Act") has filed this writ petition challenging Ext.P3 Order under Sec. 25(1) of the KVAT Act and consequent Ext.P5 Demand on the ground it pertains to the Assessment Year 2009-10; that the limitation period of five years provided in Sec. 25(1) got expired on 31/03/2015; and that the proceedings leading to Ext.P3 was initiated after the said date and hence the same is barred by limitation.

(2.) It is true that Ext.P3 order is appealable as contended by the learned Government Pleader. But this Writ Petition has been remaining in this Court since the year 2016 with an unconditional interim order staying all further proceedings pursuant to Ext.P3 and P5 in favour of the petitioner, I am of the view that the interest of justice would demand disposal of this writ petition on merits without relegating the petitioner to alternate remedy available under the Statute. That apart, the Respondent No.2 has expressed his stand through the Counter Affidavit dtd. 29/06/2016 in answer to the contentions raised in the writ petition. This Court would be fully justified in considering long pending cases on merits, when the lis could be decided without spending much judicial time and without resorting to much adjudicatory process on the basis of admitted set of facts or facts revealed from admitted documents. For disposal of the writ petitions like this, the judicial time to be spent on it would be same, either it be for considering the matter on merits or for relegating the matter to the Statutory Authority. When long pending matters are listed for final hearing, the Court has to compare the amount of official time and energy required to be spent to bring the matter before the Statutory Authority and to decide the matter by the Statutory Authority with the judicial time required by this Court for considering the matter on merits. If this Court disposes such matters, much official and adjudication time could be spared and better utilised. But, If the decision is to be taken after undertaking long and time consuming adjudicatory process or the adjudicatory process involves answering multiple questions of law and/or facts or findings on factual issues it is better for this Court to leave the matter for the decision of the Statutory Authority. This principle shall be applied only in the cases of long pending matters and shall not be understood to enable bypassing of statutory remedies. The Court has to exercise its discretion applying the facts and circumstances of each case. I lend support from the Division Bench judgment of this Court in Sujatha.M. v Secretary, Cochin Devaswom Board, Thrissur, 2014(4) KLT 79 which specifically held that the rule of alternate remedy is not an absolute bar but only a self imposed restriction. So exercising my discretionary power applying the relevant inputs in the present case , since the issue to be decided is only the question of limitation on the admitted facts, I deem it fit to decide the writ petition on merits. Relegating the writ petitioner to alternative remedy available under the statute at this distance of time would quite be inappropriate and would amount travesty of justice.

(3.) As per the Counter Affidavit of the Respondent No.2, the proceedings leading to Ext.P3 was initiated on the basis of two OR files viz; Order No.OR 418/09-10 dtd. 26/9/2012 and Order No. OR 85/09-10 dtd. 15/2/2016; that the assessment of the petitioner relates to the year 2009-10 and that the Pre-Assessment Notice under Sec. 25(1) of the KVAT Act was issued on 18/1/2016; and that as per Finance Act, 2015, the period for completion of assessment expired on 31/3/2015 was extended up to 31/3/2016 by Sec. 25B and hence the Pre-Assessment Notice dtd. 18/1/2016 is well within the extent period of limitation.