Disposed

Dr.George Jjacob v. State of Kerala

Kerala HC5 Mar 2012WP(C)/1764/2007

Case brief

AI extract

What is this about?

This writ petition sought adjustment of excess input tax credit or a refund. The petitioner claimed the statutory rule limiting refund application to three months was invalid under KVAT Rules. The court found the over due period had been extended and directed the 4th respondent to reconsider and finalize proceedings with fresh orders.

What did the court decide?

Directed the 4th respondent to reconsider and finalize proceedings with fresh orders within two months.

Dr.George Jjacob Vs State of Kerala — Writ and Judicial Review | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933

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WP(C).No. 1764 of 2007 (I)

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PETITIONER(S):

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DR.GEORGE JACOB, PROPRIETOR, M/S.WAYANAD RESINS, PUNNAPPALA P.O., ERIYAD WANDOOR, MALAPPURAM DISTRICT, PIN-679 328.

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BY ADV. SRI.R.RAMADAS

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT THIRUVANANTHAPURAM.

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2. THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, GOVERNMENT OF KERALA THIRUVANANTHAPURAM.

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3. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM.

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4. THE ASSISTANT COMMISSIONER (KVAT) SALES TAX OFFICE, SPECIAL CIRCLE, TIRUR MALAPPURAM.

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BY GOVERNMENT PLEADER SRI. SHAIJ RAJ T.K.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DCS

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WP(C).No. 1764 of 2007 (I)

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APPENDIX

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PETITIONER(S) EXHIBITS :-

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EXHIBIT P1- COPY OF THE LETTER DATED 30.06.2006 SUBMITTED BEFORE THE 4TH RESPONDENT

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EXHIBIT P2- COPY OF THE REPRESENTATION DATED 26.08.2006 BEFORE THE 3RD RESPONDENT

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EXHIBIT P3- COPY OF THE COMMUNICATION DATED 29.11.2006 FROM THE 3RD RESPONDENT

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RESPONDENTS' EXHIBITS :- NIL

/TRUE COPY/

P.A. TO JUDGE

DCS

P.R. RAMACHANDRA MENON J.

JUDGMENT

The issue involved in this case is, whether the excess

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input tax credit remaining unadjusted as on 31.02.2006 can be adjusted towards the tax due for the period 2006 - '07 or whether the petitioner is dis-entitled from having the benefit of refund, if the application in 'form 21 CC' to be submitted under Rule 47A of the KVAT Rules is beyond three months.

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The case projected by the petitioner is that he is a dealer registered under the rolls of the 4^th respondent and there was some excess input tax credit brought forth from the previous years. The petitioner sought for adjustment of the same in respect of the subsequent liability, which was declined by the department, pointing out that, in view of the change in the statutory prescription, the petitioner could only claim refund in application to be preferred in 21 CC. Accordingly, the petitioner forwarded the necessary application as per Ext. P1 communication. But, the same was rejected by the fourth

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W.P.(C) No. 1764 of 2007 : 2 :

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respondent, stating that, the claim could not be entertained in view of the specific bar under Rule 47 A of the KVAT Rules, stipulating that the period for submitting such application was only three months. The petitioner has approached this Court challenging the course pursued by the respondents, contending that there is no provision in the 'Act' mentioning any such limitation for claiming refund and that the restraint brought forth as per Rule 47 A, which is only a delegated legislation, cannot add or amend the provisions under the 'Act', as the Rules have to subserve the enactment and never beyond.

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During the course of hearing, the learned Government Pleader appearing for the respondents submits that the time for refund was originally stipulated as three months and the same was extended upto 31.07.2006, as per the contents of the Circular No. 29/2006. Admittedly, the appellant submitted application on 26.08.2006 and hence the same was belated. However, pursuant to the direction given by this Court in some other cases, the Commissioner had considered the

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W.P.(C) No. 1764 of 2007 : 3 :

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issue and the time for submitting necessary application was extended up to 28.07.2009 as per Circular No. 9 of 2007 dated 22.02.2007.

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Since the inability on the part of the assessing authority was expressed, the petitioner approached the Commissioner by filing Ext. P2 representation before him, which was turned down as per Ext. P3. It was after filing the above writ petition, that the application preferred by the petitioner before the 4^th respondent, challenging Ext. P3, happened to be rejected on 29.08.2008, which was challenged by the petitioner by filing an appeal before the competent authority, as KVAT Appeal No. 32 of 2008. The said authority, after considering the merit involved, allowed the appeal on 02.09.2010, remanding the matter for fresh consideration. It is stated that the final orders are yet to be passed by the 4^th respondent.

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After hearing both the sides, this Court finds that the time for filing application for refund extended by the Commissioner, as notified by Circular No. 9/2007 dated

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W.P.(C) No. 1764 of 2007 : 4 :

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20.02.2007, was till 28.07.2009. This being the position, the application preferred by the petitioner for refund on 26.08.2008 has necessarily to be considered as well within the time. Hence, the matter requires to be reconsidered in the light of the above crucial aspect, more so, when the earlier rejection order has been set aside, remanding the matter for fresh consideration.

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In the above circumstances, the writ petition is disposed of, directing the 4^th respondent to reconsider and finalize the proceedings in the light of the observations as stated above, passing fresh orders, in accordance with law, as expeditiously as possible, at any rate, within two months. It is also made clear that, if any amounts are found due to the petitioner as above, the same shall be given due credit to against the future liability of the petitioner in respect of the subsequent years.

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Sd/

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P. R. RAMACHANDRA MENON, (JUDGE)

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kmd

Dr.George Jjacob v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.George Jjacob v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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