IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WA.No.1404 of 2008 ------------------------ AGAINST THE JUDGEMENT IN OP.6893/2003 Dated 14/12/2007 .................... APPELLANT/PETITIONER: --------------------------- N. BHAGEERATHAN, SONEY CASHEW COMPANY, KOLLAM. BY ADV. SRI.S.RAMESH BABU RESPONDENT/ RESPONDENT: ---------------- THE ASSISTANT COMMISSIONER (ASSESSMENT II), SPECIAL CIRCLE, KOLLAM. BY GOVERNMENT PLEADER SRI. PRADEEP. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ------------------------------------------ Writ Appeal No.1404 OF 2008 ------------------------------------------ Dated this the 14th day of January, 2009. J U D G M E N T Kurian Joseph, J. Petitioner in O.P.No.6893/2003 is the appellant. The appellant-petitioner is aggrieved by Exhibit P1 notice dated 08.07.2002 under Section 17(3) of the Kerala General Sales Tax Act, 1963 (herein after called the 'Act') and Exhibit P3 order of assessment dated 30.09.2002. The main contention is on limitation. The assessment year is 1987-88. 2. Learned Government Pleader referring to the files submits that the petitioner-appellant had already been issued one notice dated 13.05.1992 and the petitioner had submitted his reply on 30.05.1992. Thereafter for quite sometime nothing transpired. In the meanwhile, Section 17(6) of the Act was introduced prescribing a period of limitation for assessment. That was introduced by Act 13 of 1993, with effect from 01.04.1993. W.A.No.1404/08 2 The period of limitation was four years from the expiry of the year to which the assessment relates. For saving those assessments, a proviso was also introduced to the effect that in the case of assessments pending as on 01.04.1993, the assessments should be completed within four years. The said proviso was substituted by Act 23 of 1999 which extended the period for completion of assessment to initially 31.03.1998 and till 30.09.1998 by Act 14 of 1998. The period has not been extended thereafter in respect of assessments pending as on 01.04.1993 under Section 17 of the Act. Therefore, it is contended that the assessment is barred by limitation. 3. Learned Government Pleader for Taxes contends that in view of Section 17A introduced with effect from 01.04.1993, there is no time limit for completion of the assessment, since the operation of Section 17A is notwithstanding anything contained in Section 17, Section 18 or in any judgment, decree or order of the Court or Tribunal. Section 17A of the Act reads as follows: Section 17A-“Assessment or reassessment of certain cases treated as pending - Notwithstanding W.A.No.1404/08 3 anything contained in section 17 or section 18, or in any judgment, decree or order of any Court, Tribunal or other authority any assessment or reassessment for any year shall be deemed to have been pending completion if, in the case of original assessment, return or turnover for the year or any period of the year relating to any period prior to 1st April, 1993, has been filed or due to be filed subsequent to the 1st day of April, 1993 and/or a notice in the prescribed form had been served upon the dealer and the assessment in respect of which had not been completed and in the case of a reassessment, the order of the appellate or revisional authority giving rise to such reassessment had been received and such reassessment has not been completed”. 4. Reliance is also placed on the Full Bench decision of this Court in Geo Sea Foods vs. Addl. Sales Tax Officer (2006(1) KLT 72). Interestingly, the appellant-petitioner also banks on the same decision. Learned Single Judge, without adverting to the various factual and legal contentions taken by the parties, dismissed the original petition holding that the issue is covered in favour of the Revenue by the Full Bench decision referred to above and hence this appeal by the assessee-petitioner. W.A.No.1404/08 4 5. The Revenue wanted to introduce the period of limitation for completion of assessment, since several assessments were being interfered with by this Court on the ground of unreasonable delay in completing the assessment. Therefore, Section 17(6) of the Act was introduced prescribing a period of four years. But, despite such statutory prescription of the period and also the provision regarding the completion of assessments in respect of the cases pending as on 01.04.1993, this Court took the view that cases where assessments had not been completed for long and pending as on 01.04.1993 had already become stale and hence it cannot be said that the assessments were pending as on 01.04.1993, in Geo Sea Foods vs. The Additional Sales Tax Officer & Ors. (2000(8) KTR 21). The Revenue was hence compelled to introduce another amendment to give a statutory clarification regarding pendency of assessment as on 01.04.1993, so as to enable the Revenue to complete those assessments within the period prescribed under Section 17(6) of the Act. That is the background of the amendment leading to Section 17A W.A.No.1404/08 5 introduced by Act 20 of 2000 and that is the reason and the significance for the non obstante clause in Section 17A. In short, Section 17A only clarifies the pendency of assessments as on 01.04.1993. That provision does not extend the period prescribed under Section 17(6) for completion of assessment. In fact, the position has been clarified by the Full Bench decision referred to above in paragraph 7 of the judgment as follows: “......... In view of S.17A of the Act, the concept of reasonable period for completing assessments for the period prior to 1.4.1993 is no more of any relevance or significance. The period is as prescribed in the Act”. 6. The period prescribed in the Act is four years at the relevant time, from the year of assessment. The year of assessment in the instant case is 1987-88. That assessment should have been completed in any case prior to 30.09.1998 as per the second proviso to Section 17(6) as it existed at the relevant time. Therefore, the Full Bench decision in Geo Sea Foods's case (supra) is in favour of the writ petitioner-appellant. Hence, we W.A.No.1404/08 6 set aside the judgment dated 14.12.2007 of the learned Single Judge. The original petition is allowed and Exhibit P3 is quashed. No costs. KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp W.A.No.1404/08 7 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. W.A. No. 1404 OF 2008 J U D G M E N T 14.01.2009