Allowed

The Commercial Tax Officer v. Aver Software Technologies Ltd.

Kerala HC10 Jul 2018WA/1286/2018

Case brief

AI extract

What is this about?

The High Court allowed this writ appeal primarily because the subject matter, photographic machinery, was re-introduced into the tax schedule with a restricted timeframe, thereby nullifying the liability. The court also condoned the significant filing delay.

What did the court decide?

The notice demanding higher tax is interfered with and the writ petition is allowed; impugned judgment observations set aside; costs not awarded.

The Commercial Tax Officer Vs Aver Software… — Writ and Judicial Review | Kerala HC (2018)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940

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WA.No. 1286 of 2018

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------------------

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AGAINST THE ORDER/JUDGMENT IN WP(C) 2435/2007 of HIGH COURT OF KERALA

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APPELLANT(S)/RESPONDENTS IN WP(C)

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1 THE COMMERCIAL TAX OFFICER, KVAT,CIRCLE-III,ERNAKULAM.

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2 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,TAXES DEPARTMENT,

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GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.

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3 THE COMMERCIAL TAX OFFICER(AA), OFFICE OF THE DEPUTY COMMISSIONER (A),OFFICE OF THE DEPUTY COMMISSIONER(AA),COMMERCIAL TAXES,ERNAKULAM,PIN-682018.

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4 THE INSPECTING ASSISTANT COMMISSIONER, ERNAKULAM & KAKKANAD,COMMERCIAL TAXES,KOCHI-682031.

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5 THE DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES,ERNAKULAM-682015.

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BY ADV.GOVERNMENT PLEADER SRI MOHAMMED RAFIQ

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RESPONDENTS:

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AVER SOFTWARE TECHNOLOGIES LTD, KRISHNAN NAIRS STUDIO BUILDINGS,CONVENT ROAD, ERNAKULAM,REPRESENTED BY K.AJITH KUMAR,AUTHORIZED SIGNATORY.

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R BY SRI.VIJAYAN. K.U.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jma

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K. VINOD CHANDRAN & ASHOK MENON, JJ

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W.A No. 1286 of 2018

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- - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10^th day of July, 2018

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J U D G M E N T

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Vinod Chandran, J

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We see that there is undue delay in filing the writ

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appeal coming to 504 days. We were not satisfied with the reasons

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for delay stated. Even then, we permitted the learned Senior Government Pleader to argue on merits, since it was submitted

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that the State is concerned only with the dictum of the judgment

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and the writ-petitioner in any event is entitled to relief by reason

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of the subsequent amendment made.

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Briefly stated the facts are that 'Photographic Machinery' was included under item number 60 of Entry 83 of

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Schedule III taxable at 4%. In the Finance Act, 2006, there was a

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W.A No.1286/2018

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::2::

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deletion of 'Photographic Machinery' from Schedule III, thus making it taxable at the rate of 12.5%. The deletion of the entry was not there in the Finance Bill, 2006. The deletion came by way of Finance Act, 2006 which deemed the said provision, along with others, to have effect from 01.07.2006. The notice was issued demanding higher rate of tax on a sale made by the petitioner on 16.09.2006. The learned Single Judge found that if the petitioner

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had collected tax at the enhanced rate on the date of sale then he would have invited prosecution insofar as having collected tax more than that made liable as per the Schedule. The learned Single Judge also held that when a dealer had collected tax in accordance with the schedule, a retrospective amendment enhancing the liability cannot result in an additional liability.

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The learned Senior Government Pleader has relied on

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J.K. Jute Mills Co. Ltd. v. The State of Uttar Pradesh and Others

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::3::

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W.A No.1286/2018

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[AIR 1961 SC 1534] to contend that though the right to pass on a

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tax to the consumer is conferred by Statute, in all cases where

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there is a retrospective amendment made.; it cannot be

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challenged only for the reason that such right to pass on the levy

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is lost.

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We are not called upon to decide the issue as of now,

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since, 'Photographic Machinery' has been re introduced in item No.60 with a note reading so:

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83 (60) Machinery for Photocopy

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Note: this entry shall be deemed to have come into

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force on the 1^st day of July, 2006 and ceased to operate on the 23^rd day of October, 2006.

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Hence the writ petitioner's liability is no more there and the

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interference to the notice issued; made by the learned Single

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W.A No.1286/2018

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::4::

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Judge, in the impugned judgment would stand. The writ petition

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would stand allowed for reason of the subsequent amendment

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and restricted insertion made to Schedule III and we set aside all other observations in the impugned judgment.

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In such circumstances, we are of the opinion that the delay can be condoned and we dispose of the writ appeal allowing

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the writ petition on the other ground. No costs.

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Sd/K. Vinod Chandran, Judge

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Sd/Ashok Menon, Judge

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jma

The Commercial Tax Officer v. Aver Software Technologies Ltd.

Case brief

What is this about?

What did the court decide?

The Commercial Tax Officer v. Aver Software Technologies Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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