IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 S.T.Rev.No.336 of 2007 --------------------------------------------- T.A.NO.27/2006 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE (ORDER DATED 30.11.2006) (ASSESSMENT YEAR 1988-89) .................... REVISION PETITIONER/APPELLANT/ASSESSEE:- ---------------------------------------------------------------------- M/S BHULANI BUILDING COMPANY, S.M.STREET, CALICUT, REPRESENTED BY ITS MANAGING PARTNER, PRAKASH CHANDER A. BHULANI, S/O LATE A.M.BHULANI, AGED 53 YEARS, RESIDING AT 27/343, 'MADHUBAN', MAVOOR ROAD, CALICUT-673004. BY ADV. SRI.P.K.SURESH KUMAR SMT.PRIYA VIJAYAN RESPONDENT/RESPONDENT/REVENUE:- ----------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 12/02/2008, ALONG WITH S.T.REV.NOS.337 & 338 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ S.T.Rev.Nos.336, 337 and 338 of 2007 ------------------------------------------ Dated, this the 12th day of February, 2008 ORDER H.L.Dattu, C.J. Petitioner is a works contractor engaged in construction activities. He was engaged in construction of a building in Mandingal at Kozhikode during the period from 1988 to 1991. 2. The assessing authority has completed the assessment for the assessment year 1988-89 and in that has quantified the tax liability of the petitioner in a sum of Rs.26250/- by way of basic tax and a sum of Rs.1050/- as surcharge. For the assessment year 1989-90, the assessing authority has quantified the tax liability of the petitioner in a sum of Rs.52500/- by way of basic tax and Rs.3360/- as surcharge. Similarly, for the assessment year 1990-91, the assessing authority has completed the assessment and quantified the tax liability of the petitioner in a sum of Rs.26,57,750/- as basic tax and Rs.3696/- as surcharge. The orders so passed by the assessing authority on 7.9.1998 were served on the assessee on 23.9.1998. 3. The assessee being aggrieved by the orders so passed by the assessing authority unsuccessfully carried the matter before the first appellate authority as well as before the Tribunal. 4. Aggrieved by the orders so passed by the assessing authority and confirmed by the first appellate authority and by the Tribunal, the assessee is before us in these tax revision cases. 5. The assessee has raised the following questions of law for our consideration and decision. They are as under: S.T.Rev.Nos.336, 337 & 338/2007 2 “a. Whether the assessment made by the assessing authorities as per order dated.25.9.2002 without complying sec.17(3) of KGST Act is valid? b. Whether the original assessment for the year 1988- 89 which was made only in 1998 is not time barred? c. Whether the assessee is entitled to get the benefit of Sec.19 of KGST Act? d. Whether the assessee is entitled to get the protection and benefits provided under sec 5C and similar provisions of KGST Act and also by circular No.23/92 and other Government circulars to works contractors?” 6. Smt.Priya Vijayan, learned counsel appearing for the revision petitioner, would submit that the order passed by the assessing authority is beyond the time prescribed under the provisions of Section 17 of the Kerala General Sales Tax Act, 1963 ('the Act' for short) and therefore, submits that firstly, the assessing authority had no jurisdiction to pass such an order and the orders passed belatedly could not have been confirmed either by the first appellate authority or by the Tribunal. In support of that contention the learned counsel takes us through the provisions of Section 17(6) of the Act. 7. Per contra, Sri.Mohammed Rafiq, learned Senior Government Pleader appearing for the respondent, brings to our notice the second proviso to Section 17(6) of the Act. The said proviso provides that all assessments relating to the years upto and including the year 1993-94 shall be completed on or before 30th September, 1998. By virtue of this provision, according to the S.T.Rev.Nos.336, 337 & 338/2007 3 learned Government Pleader, the order passed by the assessing authority is well within the time prescribed under the Act. 8. The only question that would arise for our consideration and decision, after hearing the learned counsel appearing for the parties to the lis, is whether the order of assessment passed by the assessing authority for the assessment years 1988-89, 1989-90 and 1990-91 is barred by limitation. 9. In order to answer this controversy that is canvassed by the learned counsel for the petitioner, we require to notice sub-section (6) of Section 17 of the Act and also the provisos appended thereto. The said provision is as under: “17. Procedure to be followed by the assessing authority:- xxx xxx (6) Any assessment under this Section shall be completed within a period of four years from the expiry of the year to which the assessment relates: Provided that this time limit shall not apply in the case of dealers who, being liable to get themselves registered as provided for under the Act and the Rules made thereunder have failed to do so or have done business as benamidars or through benamies. Provided further that all assessments relating to the years upto and including the year 1993-94 shall be completed on or before 30th September, 1998. Provided also that any assessment, other than an assessment falling under sub-section (4) or sub-section (4A), S.T.Rev.Nos.336, 337 & 338/2007 4 shall be completed within four months from the last date of checking of the books of accounts for the purpose of assessment for the year or within six months from such date with the permission of the next higher authority. Provided also that assessments in respect of which accounts were checked prior to the 1st day of April, 1998, shall be completed on or before the 31st day of March, 1999.” 10. A reading of the second proviso to sub-section (6) of Section 17 of the Act would authorize the assessing authority to complete the assessments relating to the years upto and including the assessment year 1993-94 on or before 30th September, 1998. 11. The revision petitioner has not questioned the said proviso, in fact, cannot be done in a revision petition. 12. Keeping in view the second proviso to sub-section (6) of Section 17 of the Act, we have looked into the orders passed by the assessing authority. The assessment years in question are 1988-89, 1989-90 and 1990-91. For all these assessment years, the assessing authority had completed the assessments on 7.9.1998 and has communicated the same to the assessee on 23.9.1998, that is, within the time prescribed under the second proviso to sub- section (6) of Section 17 of the Act. In view of that, the primary argument canvassed by the learned counsel for the revision petitioner has no merit and therefore it requires to be rejected and accordingly it is rejected. 13. In so far as the other questions of law framed by the assessee are concerned, learned counsel for the petitioner does not press the same for answer. In view of the above, we do not find any infirmity in the orders passed S.T.Rev.Nos.336, 337 & 338/2007 5 by the assessing authority and confirmed by the first appellate authority and by the Tribunal. 14. Therefore, these revision petitions require to be rejected and they are accordingly rejected. The questions of law framed by the assessee are answered against the assessee and in favour of the Revenue. 15. In view of the order passed in the civil revision cases, the interim relief sought for in I.A.Nos.3104, 3105 and 3107 of 2007 need not be considered by us and accordingly the said applications are rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns