IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 1428 of 2007(T) ------------------------- PETITIONER(S): ------------------ M/S.VENAD STRUCTURALS, PONGATHANAM PO, VAKATHANAM, KOTTAYAM 686 028, REPRESENTED BY ITS MANAGING PARTNER. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENT(S): ------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, KOTTAYAM. SPL.GOVT.PLEADER SRI.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.1428/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF THE CHELLAN DATED 20.3.00 TOWARDS REMITTANCE OF RS.2,97,200/- BY THE PETITIONER. EXT.P2: COPY OF THE CERTIFICATE DT 3.4.2000 VIDE NO.21171036/2000-01 ISSUED TO THEPETITIONER BY THE ASST.STO, ETTUMANOOR. EXT.P3: COPY OF the ORDER NO.D12-5626/2000 DATED 1.1.2001 ISSUED BY THE DEPUTY COMMISSIONER COMMERCIAL TAXES, KOTTAYAM. EXT.P4: COPY OF THE NOTICE DT 14.11.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE ASSESSMENT ORDER DT 30.10.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P6: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: COPY OF THE NOTICE DT 4.1.07 VIDE NO.21010784/02-03 ISSUED BY THE ASST.COMMISSIONER (KVAT) COMMERCIAL TAXES, KOTTAYAM TO THE PETITIONER. EXT.P8: COPY OF THE AMENDMENT NOTIFICATION-THE KERALA FINANCE ACT 2006(ACT 22 OF 2006) //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 1428 OF 2007 (T) ===================== Dated this the 30th day of September, 2009 J U D G M E N T The prayers sought for in this writ petition are mainly to: (i) issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Exts.P4 and P7 and quash the same. (ii) declare that substitution of Provisos to Sec.17 (8) of the Kerala General Sales Tax Act, 1963 (Act 15/1963) by the Kerala Finance Act, 2006 (Act 22 of 2006) evidenced by Ext.P8 is arbitrary, illegal and unconstitutional. (iii) issue a writ of mandamus or other appropriate writ, order or direction, directing the 2nd respondent to allow the request made by the petitioner as per Ext.P6. 2. In so far as Ext.P4 is concerned, that is a pre- assessment notice issued on 14/11/06 in relation to assessment year 1994-95, the assessment of which was set aside by Ext.P3 order dated 1/1/2001. The contention raised by the counsel for the petitioner is that having regard to the statutory provisions, the reassessment ought to have been completed within four years and that the said period expired in January, 2005. It is stated that thereafter assessment could not have been continued and therefore Ext.P4 issued on 14/11/2006 is hit by limitation. 3. Counsel further contends that Ext.P4 notice has been WPC 1428/07 :2 : issued taking advantage of the proviso to Section 17(6) introduced by Kerala Finance Act, 2006 (Ext.P8), which provided that the assessment relating to the years upto and including year 2001-02 pending as on 31/3/2006 shall be completed on or before 31st of March,2007. It is contended that the said provision is unconstitutional and at any rate cannot be pressed into service to revive assessments which have already become time barred. In so far as this contention is concerned, limitation is a statutory prescription and it is always open to the legislature to fix the period of limitation. In exercise of such legislative power, period of limitation has been extended by the proviso referred to above and nothing vitiating the said proviso has been shown to me to invalidate the same. If that be so, I am not prepared to hold that Ext.P4 pre-assessment notice is illegal and is liable to be set aside on the ground that the aforesaid proviso is unconstitutional. 4. In so far as Ext.P7 is concerned, according to the counsel, by Ext.P5, assessment for the year 2002-03 was completed and thereafter by Ext.P6 application made under Section 43 of the KGST Act, petitioner applied for adjustment of the amount paid as per Ext.P3, towards his liability under Ext.P5. WPC 1428/07 :3 : That was rejected by Ext.P7. Counsel contends that since further assessment following Ext.P3 has become time barred, he is entitled to have the amount paid thereunder adjusted towards the dues under Ext.P5. 5. First of all, as is evident from Ext.P7 itself, request has been rejected for the reason that assessment proceedings were pending and this is a very valid reason. Secondly, since I have already found that the contention of limitation is devoid of any substance. For these reasons, the prayer sought for adjustment necessarily cannot be granted. Therefore, I am not prepared to grant the reliefs sought for. 6. However, it is clarified that this judgment shall not be taken as one prejudicing the rights of the petitioner against the assessment order, which is to be passed in pursuance to Ext.P4. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp