COMMERCIAL TAX OFFICER Vs. S NAJEEM SAJEER MANZIL

JUDGEMENT

(1.) The impugned judgments in the above appeals disposed of a batch of writ petitions as also writ petitions, individually, filed by the assessee-petitioners against notices issued for assessment under the Kerala Value Added Tax Act, 2003 (for brevity "KVAT Act"). The issues raised being identical, reference is made to the common judgment dated 05.10.2016 disposing of a batch of writ petitions. The learned Single Judge categorized these cases on the basis of the provision under which the proceedings were initiated. The first group in the impugned common judgment are cases in which notices were issued under Section 25(1) of the KVAT Act, beyond the period of limitation provided thereunder classified as Group-A. In some of these cases the assessment has been completed and the petitioners have approached this Court under Article 226, without availing the statutory remedies on the ground of the proceedings itself being without jurisdiction for reason of the limitation having kicked in. Group-B are cases in which again the proceedings were issued after the period of limitation under Section 25(1); but the Assessing Officer rely on the orders issued by the Deputy Commissioner under Section 25B; extending the period for completion of assessment. The challenge is to the notices issued or the assessment orders passed on the strength of the orders issued under Section 25B. Group-C, is similar to Group-B, but are cases in which the order passed under Section 25B is under challenge. Group-D is a single case in which the order of penalty is challenged on the ground of limitation. Then there are two cases in which the departmental officers have resorted to Section 25A which provides for reassessment in cases where there is an audit objection; on satisfaction of the Assessing Authority. These are cases coming under Group-E. We are not concerned with Group-D & E, since the appeals from those writ petitions are not posted along with this batch.

(2.) We deem it fit that the writ appeals be considered on the issues specifically raised and delineated by the learned Single Judge; the facts being not in dispute. The first question raised is of limitation as available under Section 25(1) of the KVAT Act and the effect of the further amendment made by introduction of a proviso extending the time for completion of assessment first in the year 2010 and then regularly extended in the subsequent years. The proviso so introduced, attempted to extend the period of limitation for completion of assessment of the various years. The fundamental challenge is on the ground that there is no limitation provided in Section 25(1) for completion of assessment. The limitation provided is to 'proceed to determine...'; which words refer and mean, an initiation of proceedings, that is to say issuance of a notice. The issue stands covered by the Full Bench decision of this Court in Cholayil Enterprises v. Assistant Commissioner of Income-Tax, (2015) 4 KerLT 516.

(3.) The order of the Full Bench was in a reference from W.A No.1184/201 After the reference was answered, when the matter came up for consideration before us there was a distinction urged by the learned Special Government Pleader (Taxes), which we did not agree with. We hence allowed the writ appeal following the decision of the Full Bench, by judgment dated 05.07.2018. The limitation provided under Section 25, was held to be for issuance of notice and the extension by the proviso was of the period for completion of assessments; for which there was no limitation provided. The assessments which lapsed for reason of no notices being issued, within five years, cannot stand revived by the extension of the period for completion of assessment; for which the statute provided no limitation, was the finding.