Unnikrishnan T.A., Proprietor V. Assistant Commissioner (Assessment) Commercial Taxes, Special Circle, Alappuzha and The Agricultural Income Tax and Commercial Tax Officer Alappuzha and The Dy. Tahsildar Revenue Recovery Thalappilly, Alappuzha District and State of Kerala represented by the Secretary to Government, Taxes Department, Secretariate, Thiruvananthapuram

WP(C)/9709/2015

AI Insights

The case involves Unnikrishnan T.A., the proprietor of Sigma Agencies, who challenged a series of assessment orders under the Kerala Value Added Tax Act, 2003, for the assessment years 2005-06 to 2012-13. The petitioner argued that the tax rate applied was higher than what was finally settled by the Supreme Court in a related case (M/s. M.P. Agencies v. State of Kerala). The petitioner had not initially filed appeals against the assessment orders but sought to extend the benefit of the Supreme Court's judgment through representations to the Commercial Tax Officer, which were not considered statutory applications for rectification under Section 66 of the KVAT Act. The court's decision allows the petitioner to file fresh appeals, considering the amendments to Section 55 of the KVAT Act by the Finance Act, 2023, which provided a window for filing appeals that were previously time-barred.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 805660 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 03-04-2024
• Assessment Year: misc
• Other Referred Cases: M/s. M.P. Agencies v. State of Kerala; (2015) 7 SCC 102
• Laws Referred To: Kerala Value Added Tax Act, 2003
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ARUN SHANKAR
• Assessee Lawyers: S KUMAR; K NAIR; K UMAMAHESWAR
• Keywords: Assessment orders; KVAT Act; Rectification; Supreme Court judgment; Tax rate
• Section: 55; 66

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 WP(C) NO. 9709 OF 2015 PETITIONER: UNNIKRISHNAN T.A. AGED 59 YEARS T.A.PROPRIETOR, SIGMA AGENCIES, ALAPPUZHA DISTRICT BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENTS: 1 ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, ALAPPUZHA 688 001. 2 THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER ALAPPUZHA - 688 001. 3 THE DY. TAHSILDAR REVENUE RECOVERY THALAPPILLY ALAPPUZHA DISTRICT - 688 003. 4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM - 695001. BY ADVS. OTHER PRESENT: SRI.ARUN AJAY SHANKAR- GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.9709/2015 2 JUDGMENT The petitioner suffered Ext.P1 series of assessment orders under the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the 'KVAT Act) for assessment years 2005-06 to 2012-13. The petitioner has not preferred any appeal under Section 55 of the KVAT Act before the first Appellate Authority. It is the case of the petitioner that the rate of tax applicable on the products dealt with by the petitioner was finally settled by the Supreme Court through Ext.P5 judgment in M/s. M.P. Agencies v. State of Kerala; (2015) 7 SCC 102. It is submitted that, going by the aforesaid judgment, the rate of tax levied on the petitioner is much on the higher side. It is submitted that the petitioner had preferred Exts.P7 and P7(a) representations to the Commercial Tax Officer, Alappuzha to extend the benefit of the judgment of the Supreme Court, to the petitioner. 2. The learned Government Pleader submits that Exts.P7 and P7(a) cannot be considered as they are not statutory applications for rectification. It is submitted that, under Section 66 of the KVAT Act, an application for rectification can be filed only within a period of four years from the year in which the order was passed. It is further submitted that, though the assessment years in question are 2005-06 to 2012-13, the petitioner has not even filed separate applications in W.P.(C)No.9709/2015 3 respect of the each of the assessment orders issued. It is therefore, submitted that Exts.P7 and P7 (a) cannot be considered as applications for rectification under Section 66 of the KVAT Act. It is submitted that, if the petitioner was, in any manner, aggrieved by the orders of assessment, he should have approached the first Appellate Authority by filing an appeal under Section 55 of the KVAT Act. 3. The learned counsel for the petitioner, in reply, would submit that Section 55 of the KVAT Act has been amended by the Finance Act, 2023. It is submitted that, by virtue of the 2nd proviso added to Section 55 of the KVAT Act, the assessees who had not filed appeals within the time prescribed for any reasons whatsoever, were permitted to file a fresh appeal before the Appellate Authority, on or before 30.9.2023. It is submitted that, in the light of the above provision and considering the fact that this writ petition was pending in this Court from 2015 till today (3.4.2024), the petitioner may be permitted to file an appeal before the first Appellate Authority by excluding the period when this writ petition was pending before this Court for the purposes of the 2nd proviso to Section 55 of the KVAT Act (as incorporated by the Finance Act, 2023). 4. Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the view that the petitioner can be W.P.(C)No.9709/2015 4 permitted to file separate appeals against each of the orders of assessment for the assessment years 2005-06 to 2012-13 before the jurisdictional first Appellate Authority considering the fact that this writ petition has been pending from 25.3.2015 till today (3.4.2024). If such appeals are filed by the petitioner before the first Appellate Authority within one month from the date of receipt of a certified copy of this judgment, the same shall be treated as appeals filed within the time permitted under the 2nd proviso to Section 55 of the KVAT Act (incorporated by the Finance Act, 2023) and such appeals shall be heard and disposed of in accordance with the law and after affording an opportunity of hearing to the petitioner. The writ petition is disposed of in the above manner. I make it clear that I have not expressed any opinion on the merits of the matter. Sd/- GOPINATH P. JUDGE acd W.P.(C)No.9709/2015 5 APPENDIX OF WP(C) 9709/2015 PETITIONER EXHIBITS P1-COPY OF THE ASSESSMENT ORDER DATED 10.8.2009 P1(A)- COPY OF THE ASSESSMENT ORDER DATED 19.6.2009 P1(B)-COPY OF THE ASSESSMENT ORDER DATED28.10.2009 P1(C)-COPY OF THE ASSESSMENT ORDER DATED 3.7.2009 P1(D)- COPY OF THE ASSESSMENT ORDER DATED23.6.2009 P1(E)-COPY OF THE ASSESSMENT ORDER DATED 23.6.2009 P1(F)-COPY OF THE ASSESSMENT ORDER DATED31.7.2009 P1(G)-COPY OF THE ASSESSMENT ORDER DATED 11.9.2009 P1(H)- COPY OF THE ASSESSMENT ORDER DATED20.10.2009 P1(I)-COPY OF THE ASSESSMENT ORDER DATED 30.11.2009 P1(J)-COPY OF THE ASSESSMENT ORDER DATED 20.3.2010 P1(K)-COPY OF THE ASSESSMENT ORDER DATED 18.5.2010 P1(L)-COPY OF THE ASSESSMENT ORDER DATED 20.10.2010 P1(M)-COPY OF THE ASSESSMENT ORDER DATED 25.1.2011 W.P.(C)No.9709/2015 6 P1(N)-COPY OF THE ASSESSMENT ORDER DATED 15.3.2011 P1(O)- COPY OF THE ASSESSMENT ORDER DATED 11.5.2011 P1(P)- COPY OF THE ASSESSMENT ORDER DATED 16.6.2011 P1(Q)- COPY OF THE ASSESSMENT ORDER DATED 16.6.2011 P1(R)- COPY OF THE ASSESSMENT ORDER DATED 4.10.2011 P1(S)- COPY OF THE ASSESSMENT ORDER DATED 30.11.2011 P1(T)- COPY OF THE ASSESSMENT ORDER DATED 01.6.2012 P1(U)- COPY OF THE ASSESSMENT ORDER DATED 5.10.2012 P1(V)- COPY OF THE ASSESSMENT ORDER DATED27.2.2013 P2- COPY OF THE JUDGMENT DATED 8.1.2015 IN OTR 125/2010 OF THIS HONOURABLE COURT P3- COPY OF THE CLARIFICATION ORDER NO.C7.34151/06/CT DT.25.10.2006 P3(A)- COPY OF THE CLARIFICATION ORDER NO.C7.302/07/CT DT.15.10.2007 P4- COPY OF THE JUDGMENT DATED 6.4.2009 IN OTA 9/2007 OF THIS HONOURABLE COURT P5- COY OF THE JUDGMENT DATED 18.3.2015 IN CIVIL APPEAL NO.1440/2010 OF THE HONOURABLE SUPREME COURT OF INDIA P6- COPY OF THE RR NOTICE DATED 18.3.2015 P6(A)- COPY OF THE RR NOTICE DATED W.P.(C)No.9709/2015 7 18.3.2015 P6(B)- COPY OF THE RR NOTICE DATED 18.3.2015 P6(C)- COPY OF THE RR NOTICE DATED 18.3.2015 P6(D)-COPY OF THE RR NOTICE DATED 18.3.2015 P6(E)-COPY OF THE RR NOTICE DATED 18.3.2015 P6(F)-COPY OF THE RR NOTICE DATED 18.3.2015 P6(G)-COPY OF THE RR NOTICE DATED 18.3.2015 P7- COPY OF THE REPRESENTATIN IFLED BY THE PETITIONER DATED 19.3.2015 BEFORE THE 2ND RESPONDENT P7(A)- COPY OF THE REPRESENTATIN IFLED BY THE PETITIONER DATED 24.3.2015 BEFORE THE 2ND RESPONDENT "