IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 4478 of 2007(G) ------------------------------------- PETITIONERS: --------------------- 1. DHANDAPANI.M., 8/29, RAJESWARI NILAYAM, MALAMPUZHA-P.O, PALAKKAD-678 651. 2. C.UMMER, CHEMALA HOUSE, KUNNAPALLY P.O., ADIVARAM, PERINTHALMANNA. 3. C.K.GANGADHARAN, JAYA COFFEE WORKS, PENTA TOWN, MAIN ROAD, OTTAPALAM-679 101. 4. SHAJI JOSE, ANACKKAL ESTATE, MUTHUKURUSSI P.O., THACHAMPARA, PALAKKAD DISTRICT. 5. SHAJI.B.P., PUDUVAL HOUSE, NANJAPPA NAGAR, OLAVAKODE, PALAKKAD DISTRICT. 6. RAJASEKHARAN.M., SATHYA VIHAR, KALLEKULANGARA P.O., OLAVAKKODE, PALAKKAD DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, THIRUVANANTHAPURAM. 2. ASSISTANT COMMISSIONER (ASSESSMENT), OFFICE OF THE ASSISTANT COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, PALAKKAD. 3. THE COMMISSIONER FOR COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4478/2007-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF THE SUPREME COURT DTD. 27/07/2006. EXT.P.2: COPY OF THE NOTICE UNDER SECTION 17(3) OF THE KGST ACT NO.PDL 1/07 DTD. 31/01/2007 TO THE P.1. EXT.P.3: COPY OF THE NOTICE UNDER SECTION 17(3) OF THE KGST ACT NO.PDL 1/07 DTD. 31/01/2007 TO THE P.2. EXT.P.4: COPY OF THE NOTICE UNDER SECTION 17(3) OF THE KGST ACT NO.PDL 1/07 DTD. 31/01/2007 TO THE P.3. EXT.P.5: COPY OF THE NOTICE UNDER SECTION 17(3) OF THE KGST ACT NO.PDL1/07 DTD. 31/01/2007 TO THE P.4. EXT.P.6: COPY OF THE NOTICE UNDER SECTION 17(3) OF THE KGST ACT NO.PDL 1/07 DTD. 31/01/2007 TO THE P.5. EXT.P.7: COPY OF THE NOTICE UNDER SECTION 17(3) OF THE KGST ACT NO.PDL 1/07 DTD. 31/01/2007 TO THE P.6. EXT.P.8: COPY OF THE INTERIM ORDER IN W.P.(C).NO.4002/2007 DTD. 06/02/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.R.RAMACHANDRA MENON, J -------------------------------------- W.P.(C).NO.4478 OF 2007 ------------------------------------- Dated this the 29th day of October, 2010 JUDGMENT The petitioner is challenging the Constitutional validity of Section 5 BA of the KGST Act, whereby it has been stipulated that 'licence fee' could be levied, in lieu of tax, on the sale of lottery. The petitioner is also seeking to quash Ext.P2 to P7 series demand notices. 2. The legal issue had come up for consideration of this Court earlier and the same was answered against the State/Revenue, as per the decision in (2007 (2) KLT 397) Commercial Corporation of India v Addl. Sales Tax Officer holding that Section 5BA of the KGST Act was unconstitutional and that the State Government cannot collect the disputed liability. It is brought to the notice of this Court by the learned counsel for the petitioner as well as the learned Senior Government Pleader appearing for the respondents, that the above decision, though was subjected to challenge by way of Writ Appeal and thereafter before the Apex Court, it did not turn to be fruitful. In the above circumstance, the petitioner is entitled to succeed. Accordingly, Ext.P2 and P7 notices are set aside and the writ petition is allowed as prayed for. No costs. P.R.RAMACHANDRAMENON,JUDGE pm