IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 WP(C).No. 19983 of 2008(D) -------------------------- PETITIONER: --------------- SMT. ARYA RAMIA MOHAMMED ALI, W/O.K.K. MOHAMMED ALI, KADEPARAMBIL, SHABNA MANZIL, VAZHAKKALA.P.O,KAKKANAND, KOCHI. BY ADV. SRI.K.I.SAGEER RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, TRIVANDRUM. 2. THE ADDITIONAL SALES TAX OFFICER-III, HOSDURG, KASARAGOD. 3. THE COMMERCIAL TAX OFFICER, HOSDURG, KASARAGOD. 4. THE COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM. R1 TO R4 BY GOVERNMENT PLEADER SRI. BOBY JOHN PUTHENPURAKKAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19983 of 2008(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COY OF THE NOTICE DT. 26.2.2007 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT EXT.P2 : TRUE COY OF THE STAY ORDER DT. 6.2.2007 IN W.P.C 4002/07 RESPONDENTS' ANNEXURES: NIL //TRUE COPY// jma K.Vinod Chandran, J. ---------------------------------------- W.P.(C).No.19983 of 2008-D ---------------------------------------- Dated this, the 21st day of November, 2011 JUDGMENT This writ petition was posted in the disposal list, since there was no appearance for the petitioner and even today, there is no appearance. 2. I have heard the Special Government Pleader (Taxes) on the issue involved in the matter. 3. The petitioner challenges the assessment order passed against her deceased husband, who was a dealer of other State lottery tickets. By Exhibit P1, the assessing officer has passed an assessment on the best of his judgment under Section 17(3) of the KGST Act for the assessment year 2004-05, assessing the sale of lottery tickets, presumably under Section 5BA of the Kerala General Sales Tax Act. The Supreme Court in Sunrise Associates v. Government of NCT of Delhi, (2006) 145 STC 576 (SC) held that “lottery” is not “goods” as it is an actionable claim and hence no sales tax can be levied on the sale of lotteries; especially in the context of Section 5BA of the KGST Act being declared unconstitutional. It was also specifically pointed out that the Supreme Court had made the decision prospective in view of the fact W.A.No.19983 of 2008-D - 2 - that the earlier decision in H.Anraj v. Government of Tamil Nadu, (1986) 1 SCC 414, was holding the field for a long period and the States had been collecting tax on the sale of lotteries; which, if ordered to be refunded, would cause prejudice to the State. In view of the clear declaration by the Supreme Court in Sunrise Associates case (supra), I am of the opinion that Exhibit P1 assessment order cannot be sustained and the same is accordingly set aside. However, it is made clear that any amounts paid by the deceased assessee or the petitioner herein to the Government before the decision in Sunrise Associates case shall not be liable to be refunded, since the Supreme Court has prospectively overruled the earlier decision in H.Anraj's case (supra). The writ petition is allowed. K.Vinod Chandran, Judge. vku/-