IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 21026 of 2007(C) -------------------------- PETITIONER(S): ------------------- M/S. S.R.T. TRADE LINKS, KATTAPPANA, REPRESENTED BY ITS MANAGING PARTNER, T.P. PAUL. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): ---------------------- 1. SALES TAX OFFICER, KATTAPPANA. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.P.PRADEEP FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21026/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ASSESSMENT ORDER FOR 04-05 PASSED BY THE 1ST RESPONDENT. EXT.P2: COPY OF ASSESSMENT ORDER FOR 04-05 ISSUED BY THE FIRST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 21026 OF 2007 (C) ===================== Dated this the 16th day of October, 2009 J U D G M E N T The controversy in this writ petition arose out of Ext.P2, by which the assessment for the year 2004-05, which was completed by Ext.P1, has been reopened. Thereupon, according to the petitioner, he approached the 1st respondent and expressed his willingness to pay the tax as demanded by Ext.P2. He also claimed entitlement for input tax credit in respect of the tax due under Ext.P2. However strictly construing Rule 12(5) of the KVAT Rules, 2005, on the ground that Form 25 ought to have been filed by April 2005, the Officer turned down the petitioner's request and it was thereupon that this writ petition was filed with the prayer to direct the 1st respondent to permit the petitioner to pay tax under Ext.P2 and to avail of input tax credit of the tax as provided under Section 11 of the VAT Act, 2003. 2. As already seen, though by Ext.P1, the assessment for the year 2004-05 was completed, it was reopened only by Ext.P2 dated 23/5/2007. Since tax has become payable only by Ext.P2, the petitioner could not have claimed input credit for the tax WPC 21026/07 :2 : payable under Ext.P2 any time prior to Ext.P2. If so, the literal construction of the rule as has been done by the 1st respondent will be defeating the very entitlement of the petitioner. 3. In my view, having regard to the facts as noticed above, it is only appropriate that the petitioner is allowed to avail of input credit for the tax due under Ext.P2 by filing Form NO.25. It is directed that if the petitioner files Form 25 under Rule 12(5) of the KVA Rules, 2005 within three weeks from today, the 1st respondent shall entertain the same and pass appropriate orders thereon within 3 weeks in accordance with law. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp