IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WA.No. 1714 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20575/2009 Dated 23/07/2009 .................... APPELLANT(S): -------------- HINDUSTHAN PETROLEUM CORPORATION LIMITED COCHIN REGIONAL OFFICE,KARSHAKA ROAD, ERNAKULAM,REP.BY ITS CHIEF REGIONAL MANAGER JOSEPH SAMUEL. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.MAHESH V.MENON RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER, SPECIAL CIRCLE II,COMMERCIAL TAXES,ERNAKULAM. 2. SALES TAX APPELLATE TRIBUNAL, ERNAKULAM,REP.BY ITS SECRETARY. 3. THE MANAGER, STATE BANK OF INDIA, M.G.ROAD BRANCH,ERNAKULAM. 4. DEPUTY COMMISSIONER (INTELLIGENCE), COMMERCIAL TAXES,ERNAKULAM. ADDL. RESPONDENT: 5. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. (ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DT.24.8.2009 IN I.A. NO.813/2009.) BY SPL. G.P. SRI.VINOD CHANDRAN G.P. SRI.MOHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH W.A. NO.127/2009 & CONN. CASES ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... Writ Appeal Nos.1714, 127, 1829 & 1907 of 2009 & W.P.(C) Nos.5660 of 2008, 989, 4610, 18470, 21729, 27059, 27551, 27589 & 28304 of 2009 .................................................................... Dated this the 8th day of October, 2009. JUDGMENT Ramachandran Nair, J. The challenge raised in the Writ Appeals and the Writ Petitions is against the constitutional validity of Section 17D of the Kerala General Sales Tax Act, 1963 (hereinafter called "the Act"). The Value Added Tax regime came into force in Kerala by the introduction of the Kerala Value Added Tax Act, 2003 with effect from 1.4.2005. The KGST Act has ceased to be operational since the commencement of VAT Act except in regard to the trade in petrol, diesel and alcoholic products. In other words, from 2005-2006 onwards the KGST Act has become redundant for most of the dealers who are governed by the VAT Act. However, the Government noticed that thousands of assessments under the KGST Act were pending even after two years of the 2 commencement of the VAT regime and as a measure for early finalisation of pending assessments, the Finance Act, 2007 introduced a summary procedure for completion of pending assessments. It is this scheme of summary assessment covered by Section 17D of the Act that was challenged by few dealers before the Single Judges. Two learned Single Judges upheld the constitutional validity of Section 17D, against which the connected Writ Appeals are filed. Remaining cases are new cases filed before the Single Judge challenging the very same statutory provision and therefore, those cases are also listed with the Writ Appeals. We have heard various counsel appearing for the appellants/petitioners and the Special Government Pleader appearing for the respondents. 2. For easy reference we extract hereunder Section 17D with all it's sub-sections: "S.17D. Fast Track method of completion of Assessment-- (1) Notwithstanding anything contained in any other law for the time being in force or in any other provisions of this Act assessments pending under the Act as on the 1st day of April, 2007 may, subject to the provisions of sub-section (2), be 3 completed under the fast track method. (2) The assessment under sub-section(1) shall be completed in the following manner, namely:- (a) The assessment shall be completed by a 'team' comprising of a team of officers which shall be constituted by the Commissioner; (b) In the case of files relating to Special Circles, there shall be three Assistant Commissioners in the team, headed by a Deputy Commissioner. In the case of Ordinary Circles, the team shall be headed by an Assistant Commissioner and comprise three Commercial Tax Officers as members. (c) All files of the dealer pertaining to an assessment year shall be clubbed with assessment file and taken up for disposal; (d) All files of the dealer pertaining to an assessment year shall be re-opened unless there is fresh receipt of materials pertaining to tax evasion; Provided that the assessment may be re-opened with the prior permission of the Commissioner; (e) The assessment shall be completed fairly by a summary proceeding; and in cases where the returns are not acceptable, the following criteria may be adopted for determining their tax liability namely:- (i) in case where the dealer had compounded the offence under Section 47, or penalty under Section 45A or Section 29A has been levied, the assessment may be 4 completed on an addition proportionate to the period of suppression with reference to the quantum of suppression detected, limiting the tax effect on such addition to a maximum of three times of the compounding fee paid or tax effect of suppression detected, whichever is higher, and in case where a pattern of suppression has not been established, to an amount equal to the suppression detected. (ii) in case where tax evaded cannot be quantified, the assessment may be completed on an addition equal to five per cent of the taxable turnover conceded by the dealer as per his returns or accounts, subject to tax effect of a minimum of five thousand rupees and a maximum of one lakh rupees. (iii) in case where statutory forms and/declarations in support of a claim of concessional rate of tax or exemption have not been filed or are partially filed, or where the forms have been misused, the assessment may be completed by disallowing such claims, to the extent of the defect in such forms, assessing it under this Act. (iv) in case of contracts where option for compounding under the provision contained in section 7 of this Act, as it then existed have been filed, and where returns and tax deduction certificate issued by the awarder have been produced, assessment may be completed accepting the awarder's certificate. (v) in case of contracts in respect of which tax is paid under Section 5 of this Act, and where returns and 5 statement of accounts have been filed, but the returns are found to be incorrect or incomplete, assessments may be completed determining additional tax payable at twenty per cent of the tax payable subject to a minimum of ten thousand rupees. Provided that the amnesty scheme envisaged in Section 23B shall also be applicable to assessment completed as per this section. (f) The team shall be competent to offer reasonable concessions after recording the reasons thereof on the estimation of suppression of turnover on account of any offences detected against the dealer, and also on the interest payable up to a maximum of fifty per cent of that payable, in cases where the dealer offers immediate payment of the dues; (g) The hearings shall be open to public. The date and venue of the sitting shall be intimated in advance to the dealers concerned. Information shall also be published through the local media; (h) No adjournment in the cases listed at a session shall be permitted except under exceptional circumstances; (i) If a dealer fails to appear, the assessment shall be finalized 'ex-parte' following the principles of natural justice; (3) All assessment under fast track method shall be by unanimous decisions signed by all team members. (4) Notwithstanding anything contained in any other law for the time being in force, the officers of the team shall be absolved 6 from personal liability on account of any assessment order issued in good faith. (5) Notwithstanding anything contained in any other provisions of this Act, appeals against the assessment orders issued under fast track method shall lie within forty five days to the Sales Tax Appellate Tribunal and no such appeal shall lie unless the dealer has paid the entire tax amount." 3. The main grievance of the appellants/petitioners is against sub- section (5) of Section 17D which provides for an appeal to the Sales Tax Appellate Tribunal against the assessments completed under Section 17D only if the entire tax assessed is paid. Besides challenging the constitutional validity of Section 17D, appellants/petitioners have also challenged the validity of the impugned assessment orders issued under the said provision. The learned Single judge upheld Section 17D in toto and held that those who are aggrieved by the assessments impugned in the W.P.(C)s. should challenge the said orders in appeal before the Sales Tax Appellate Tribunal after remittance of assessed tax. Even though appellants/petitioners contended before the learned Single Judge that the impugned assessments were completed without 7 following the procedure contemplated under Section 17D, the court did not consider the same, but probably left that also to be raised in appeal before the Tribunal. It is in this context the appellants have filed these Writ Appeals challenging the judgment of the learned Single Judge on both grounds i.e. against the finding upholding the constitutional validity of Section 17D and in not considering their challenge against the assessment orders as not completed in accordance with the statutory provisions. We have to, therefore, consider challenge against both constitutional validity of Section 17D and against assessment orders. At first, we proceed to decide the constitutional validity of Section 17D of the KGST Act. 4. The common ground raised by all the parties is that the provisions of Section 17D are arbitrary, discriminatory and violative of Article 14 of the Constitution of India. The first type of discrimination pointed out by them is between dealers whose assessments were completed as on 31st March, 2007, who enjoyed facility for two level appeals against assessments without payment of assessed tax, but on 8 payment of only admitted tax and those dealers whose assessments are pending as on 1st April, 2007, which could be completed under Section 17D limiting their right of appeal only at one level to the Tribunal, that too, after payment of full assessed tax. The second type of discrimination pointed out is between the dealers whose assessments could be completed at the discretion of the Assessing Officer by resorting to the regular course of assessment under Section 17(3) and the other class of dealers whose assessments are taken up by the team of officers constituted under Section 17D(2)(b) of the Act. In other words, the contention of the appellants/petitioners is that since Section 17D gives discretion to the assessing authorities, some of the dealers will be assessed under Section 17(3) who will get right of appeal at two levels without payment of full assessed tax, while for other dealers whose cases are taken up for assessment by the team of officers, will have right of appeal only to the Tribunal, that too, after payment of full assessed tax. The stand of the respondents is that Section 17D applies to every assessment pending as on 1st April, 2007 and no 9 discrimination among pending cases or dealers is visualised. In fact, as a matter of practice, every pending assessment will be considered for assessment by the team in accordance with the provisions of Section 17D and the reason why assessment under Section 17D is not made compulsory is to enable regular Assessing Officers to proceed with their work of completion of assessments wherever possible in parallel with the work of the team. In other words, Special Government Pleader submitted that there may be cases where some Assessing Officers may not get included in the team and they will have time to complete assessments or there may be cases involving protracted procedure like consideration of documents, examination of witnesses, etc., in the course of assessment, which cannot be taken up or completed by the team under the summary procedure contemplated under Section 17D. According to him, it is only under these exceptional circumstances pending assessments are taken up by individual officers. 5. Before proceeding to examine challenge against the validity of 10 the statutory provision, we have to necessarily examine the scope and ambit of the Section. In the first place, it is clear from the Finance Minister's Speech that the purpose of introduction of Section 17D is finalisation of pending assessments in a summary manner. Further, the Special Government Pleader furnished statistics before us stating that when the Section came into force, as many as 8000 cases were pending and the team constituted under Section 17D has disposed of 1574 cases and the balance pendency is around 6500 cases. He also pointed out that out of 1574 cases completed, only around 15 dealers have approached this court challenging the validity of the statutory provision under which assessments are completed. In other words, according to him, the summary assessments were found beneficial and acceptable to most of the dealers and the appellants/petitioners' are only exceptions. Based on the statistics the contention canvassed on behalf of the State is that there is general acceptability of the scheme of assessment under Section 17D by the dealer-community. 6. We notice that the provisions of Section 17D unlike the 11 provisions of Section 17 are not just a procedure for assessment. On the other hand, it is loaded with several incentives for the dealers and restrictions for the assessing team while making assessment. In the first place, sub-clause (i) of Section 17D(2)(e) states that even in the case of dealers who have compounded offence for evasion of tax under Section 47 or on those dealers on whom penalty is levied for evasion of tax under Section 45A or under Section 29A, the addition to the turnover in the course of assessment under Section 17D should be limited to three times of the compounding fee paid or the tax effect of suppression detected, whichever is higher and in cases where a pattern of suppression has not been established, the addition should be limited to only an amount equal to the suppression detected. In our view, this is a major restriction to the team of Assessing Officers because in the normal course in regular assessment under Section 17(3), if a dealer is found to have evaded tax, then turnover suppression is to be estimated by the Assessing Officer on best judgment basis. In other words, the limitation contained in the above provision is a substantial restriction to 12 the team of Assessing Officers to limit the addition sacrificing the interest of the Revenue only for the purpose of finalisation of pending assessments. We do not want to deal with the entire concessions available to the dealers whose assessments are taken up under Section 17D. However, it is worthwhile to refer to the concession available under sub-clause (f) of Section 17D(2) also by which the team of Assessing Officers is given freedom to offer reasonable concessions in the estimation of turnover even in the case of dealers against whom offence is detected and in such cases, the dealers are also entitled to waiver of 50% of interest which is otherwise mandatory under Section 23(3A) of the KGST Act. In view of the provisions abovereferred and other provisions, it is seen that Section 17D cannot be considered as a procedure of assessment as contended by the appellants/petitioners, but it is as much a substantive law pertaining to assessment whereunder the team of Assessing Officers have to make sacrifices for the State only for the sake of completion of pending assessments. In view of this position, we doubt whether the appellants/petitioners' prayer for 13 declaration of the statutory provision as invalid can be considered because if we do so, the assessments of thousands of dealers who have accepted the assessments completed under Section 17D as beneficial to them and who have remitted the tax will automatically become invalid. In any case we are bound to keep this in mind while considering the challenge against statutory provision and the consequential relief, if any, to be granted. The appellants/petitioners and respondents have cited large number of decisions of the Supreme Court and that of the High Courts. We find that the decisions are generally on Article 14 of the Constitution of India. However, none of the decisions cited is directly applicable to the facts of the cases here. Therefore, we will only refer to the more appropriate decisions which have relevance for the purpose of deciding these cases. 7. The discrimination alleged by the appellants/petitioners, in our view, to a large extent does not exist. The discrimination drawn between the dealers whose assessments are completed as on 31.3.2007 and the case of dealers whose assessments are pending as on 1.4.2007 14 cannot be accepted because they do not belong to the same class. The very purpose of introduction of Section 17D itself is to complete all pending assessments by adopting a summary procedure. The fact that assessments of some dealers have been completed under the existing procedure does not bar the Legislature from making a separate procedure for completion of pending assessments. The apprehension of the appellants/petitioners that in exercise of discretion of the Assessing Officers, assessees could be discriminated by taking up the assessments of some of them for regular assessment and by referring other cases for assessment by the Team under Section 17D is also not justified. We feel what is visualised under Section 17D is to complete as far as possible all assessments pending as on 1.4.2007 in accordance with the summary procedure contemplated under Section 17D. In fact, the very purpose of completion of assessments under the old Act within a timeframe is for early transition to the VAT regime and for devotion of time of the Assessing Officers for timely completion of assessments under the VAT Act. There may be very few cases where protracted 15 procedure for assessment is required such as taking of evidence, cross- examination of witness etc., which cannot be done in a summary manner by the team constituted under Section 17D. It is only to complete the assessments of such exceptional nature, the Legislature has not done away with the existing provisions for completion of regular assessments when Section 17D was introduced. The word "may" contained in Section 17D is not intended to be used as a discriminating provision to take up some assessments in a summary manner in terms of Section 17D and to take up some other assessments at the discretion of the officers under Section 17(3) of the Act. The appellants/petitioners have not pointed out any specific case of discrimination in regard to completion of pending assessments. On the other hand, statistics furnished by the department stated above prove that assessments are generally taken after the introduction of Section 17D under the said provision and only in exceptional cases, assessments are completed under Section 17(3). These are said to be cases which cannot be completed under the summary procedure 16 provided under Section 17D of the Act. In some cases Assessing Officers who do not form part of the team constituted for assessment under Section 17D are also taking up regular assessments. We do not think the existence of exceptional situations justifying regular assessments can constitute a valid ground for interference with a statutory provision of general application on ground of discrimination. We, therefore, reject this contention. 8. The major grievance raised by all the appellants/petitioners is against the mandatory provision contained in Section 17D(5) under which appeal against assessment completed under Section 17D is maintainable before the Tribunal only if the dealer remits the assessed tax amount in full. In this connection, the learned Single Judge has relied on several decisions which are again cited before us by the Special Government Pleader. The Supreme Court has in GUJARAT AGRO INDUSTRIES CO. LTD. V. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD ((1999) 4 SCC 468) held that: "Right of appeal is the creature of a statute and it is for 17 the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is a statutory right can be conditional or qualified. It cannot be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute, however, in regard to an appeal, the position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose conditions as well." In the later decision in GOVERNMENT OF ANDHRA PRADESH V. P.LAXMI DEVI ((2008) 4 SCC 720) the apex court upheld the provision for payment of 50% of stamp duty for enabling the aggrieved party to maintain a reference to the Collector against the order determining stamp duty payable. It is pertinent to note that the Single Judge has compared stamp duty with tax and specifically held that hardship is not relevant in considering validity of taxing statutes which are to be construed strictly. The appellants/petitioners have referred to the orders issued in their cases and contended that the provision for 18 deposit of full assessed tax payable under such arbitrary orders would virtually defeat their right of appeal as many of them would not be able to remit such huge amount for maintainability of appeal. We do not think the validity of the statutory provision should be considered with reference to arbitrary or illegal orders issued in violation of the statutory provisions. In our view, the validity of a provision has to be considered with reference to it's plain meaning and by assuming that action taken or orders passed thereunder will be in accordance with the scheme and as visualised therein. Merely because the scheme of assessment visualised under Section 17D is misused by the authority or is capable of misuse, the provision cannot be declared unconstitutional. As already stated, out of 1574 assessments completed under Section 17D, the total number of litigants before this court challenging the validity of the statutory provision is less than 20. The Supreme Court in GANNON DUNKERLEY & CO. STATE OF RAJASTHAN (1993) 88 STC 204 held as follows: "The constitutional validity of a statute has to be 19 determined on the basis of its provisions and on the ambit of its operation as reasonably construed and if, so judged, it does not pass the test of constitutionality it cannot be pronounced valid merely because it is administered in a manner which not conflict with the constitutional requirements." In our view, the reverse proposition would be that if the provision challenged is otherwise constitutionally valid, it cannot be declared unconstitutional merely because there is likelihood of it being misused by Statutory Authority by issuing arbitrary orders. The appellants/petitioners have pointed out that the provisions upheld by the Supreme Court pertaining to pre-deposit of assessed tax for filing appeal are mainly cases against Municipal Corporations where the tax involved is low, whereas in the case of appellants/petitioners, the assessed tax is so huge and many of them will not be able to deposit the same for filing appeal. If the exorbitant demand of tax is as a result of arbitrary orders issued, which according to the appellants/petitioners are issued in violation of natural justice and without following the mandatory procedure provided in Section 17D, it is not as if 20 appellants/petitioners are totally without remedy. The constitutional remedy under Article 226 is available in such cases and it will be open to the aggrieved party to approach this court seeking relief against such orders and it is within the powers of this court to mould appropriate relief. 9. Of course two level appeals are provided against regular assessments by Assessing Officers, that too, on payment of only admitted tax. However, in the case of Section 17D assessment, only one appeal is provided, that too, after payment of full assessed tax. It is worthwhile to note that there is substantial difference between the assessment completed by a regular Assessing Officer and the assessment completed by a team of Assessing Officers. In the case of Special Circle cases where the Assessing Officer is an Assistant Commissioner, the team