A surcharge targeting qualifying retail chains importing goods was held discriminatory under Article 304(a). The court dismissed the State’s 26 appeals and upheld the judgment invalidating the levy under Section 3(1A) of the Kerala Surcharge on Taxes Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1923 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1108/2017(K) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA-695002.
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA-695002.
3 ASSISTANT COMMISSIONER-IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA-682018.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
ADITYA BIRLA NUVO LTD., (NOW KNOWN AS M/S ADITYA BIRLA FASHIONS AND RETAILS LTD), M.G. ROAD,ERNAKULAM, KERALA, REPRESENTED BY ITS AUTHORIZED SIGNATORY.
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
, COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1926/2018 AND CONNECTED CASES, THE COURT ON 19-022020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1926 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1162/2017(U) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA -695 002.
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA-695002.
3 ASSISTANT COMMISSIONER-IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA-682018.
BY SR.GP- SRI. MOHAMMED RAFIQ,
RESPONDENT/S:
ADITYA BIRLA NUVO LIMITED, (NOW KNOWN AS M/S ADITYA BIRLA FASHIONS AND RETAILS(LTD.), M.G.ROAD, ERNAKULAM, KERALA, REP. BY ITS AUTHORIZED SIGNATORY.
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1949 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1123/2017(M) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA 695002
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA. 695002
3 ASSISTANT COMMISSIONER -IV SPECIAL CIRCLE- II, COMMERCIAL TAXES, ERNAKULAM, KERALA. 682018
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S.ADITYA BIRLA NUVO LTD (NOW KNOWN AS M/S. ADITYA BIRLA FASHIONS AND RETAILS LTD,) M.G ROAD, ERNAKULAM, KERALA, REPRESENTED BY ITS AUTHORIZED SIGNATORY. 682016
R1 BY ADV. SRI.SHAJI THOMAS OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1964 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1115/2017(L) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES,GOVERNMENT OF KERALA, TRIVANDRUM, KERALA- 695002.
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA- 695002.
3 ASSISTANT COMMISSIONER -IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA- 682018
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S ADITYA BIRLA NUVO LTD.(NOW KNOWN AS M/S. ADITYA BIRLA FAHSIONS & RETAILS LTD.) M.G.ROAD,ERNAKULAM,KERALA,REPRESENTED BY ITS AUTHORIZED SIGNATORY
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1993 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 39888/2016(I) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE II, ERNAKULAM, KOCHI 682015
2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVNANTHPAURAM-695001.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S FABINDIA OVERSEAS (P) LTD. 39/4749, R. MADHAVAN NAIR ROAD ERNAKULAM, KOCHI 682016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2008 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 26980/2016(V) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA-695002
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES,TRIVANDRUM, KERALA-695002
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
ADITYA BIRLA FASHIONS AND RETAIL LIMITED HILTE MALL, (KOZHIKODE, KERALA- 673 021, REPRESENTED BY ITS AUTHORISED SIGNATORY, PRAMOD BISWAL
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2011 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1113/2017(L) OF HIGH COURT OF KERALA
APPELLANT/S:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA - 695 002.
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM , KERALA 695002
3 ASSISTANT COMMISSIONER -IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM , KERALA 682018
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S.ADITYA BIRLA NUVO LTD., (NOW KNOWN AS M/S. ADITYA BIRLA FASHIONS AND RETAILS LTD.,), M.G.ROAD, ERNAKLAM, KERALA, REPRESENTED BY ITS AUTHORISED SIGNATORY.
R1 BY ADV. SRI.SHAJI THOMAS OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2015 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1112/2017(L) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY,COMMERCIAL TAXES,GOVERNMENT OF
KERALA,TRIVANDRUM,KERALA,695002.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S ADITYA BIRLA NUVO LTD.,
(NOW KNOWN AS M/S ADITYA BIRLA FASHIONS AND RETAILS LTD),M.G.ROAD, ERNAKULAM, KERALA,REPRESENTED BY ITS AUTHORISED SIGNATORY 682016.
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2019 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 12707/2017(K) OF HIGH COURT OF KERALA
APPELLANT/S:
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S.R.P.TELEBUY SKYSHOP (P) LTD. DESHABHIMANI, KALOOR, KOCHI, REPRESENTED BY ITS ASSISTANT REGIONAL MANAGER MR.RATHEESH.K.
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2034 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1166/2017(U) OF HIGH COURT OF KERALA
APPELLANT/S:
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S.ADITYA BIRLA NUVO LTD., (NOW KNOWN AS M/S.ADITYA BIRLA FASHIONS AND RETAILS LTD.), M.G.ROAD, ERNAKULAM, KERALA, REPRESENTED BY ITS AUTHORIZED SIGNATORY.
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2038 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 8900/2015(J) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM , KOCHI 682015.
2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S. FABINDIA OVERSEAS (P) LTD. 39/4749, R. MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI 682016, REPRESENTED BY ITS AUTHORISED SIGNATORY ARCHANA NANDAL.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2041 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 22192/2012(Y) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES,SPECIAL CIRCLE II,ERNAKULAM,KOCHI,682015
2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S. FAB INDIA OVERSEAS PVT. LIMITED 39/4729,R.MADHAVAN NAIR ROAD,ERNAKULAM,KOCHI,682016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2058 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 39948/2017(P) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA - 695 002.
3 ASSISTANT COMMISSIONER, SPECIAL CIRCLE-II,STATE GOODS AND SERVICES TAX DEPARTMENT, KOZHIKODE-673121.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S.LIFESTYLE INTERNATIONAL PVT.LTD. HILITE CITY MALL, 3-C-1043, OLAVANNA GRAMA PANCHAYATH, PALAZHI DESAM, KOZHIKODE - 673 014, REPRESENTED BY ITS AUTHORIZED SIGNATORY PRAVEEN K., REGIONAL COMMERCIAL MANAGER.
R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.JEN JAISON
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2073 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 33486/2017(I) OF HIGH COURT OF KERALA
APPELLANT/S:
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S MADURA GARMENTS
LIFESTYLE RETAIL COMPANY LIMITED, (NOW KNOWN AS M/S.ADITYA BIRLA FASHIONS AND RETAILS LTD., HILTE MAIL, KOZHIKODE, KERALA, REPRESENTED BY ITS AUTHORISED SIGNATORY, PRAMOD DISWAL. PIN-673 021.
R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.JEN JAISON
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2090 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 14880/2015(H) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER(ASSESSMENT), DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM, KOCHI - 682 015.
2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
FAB INDIA OVERSEAS PRIVATE LIMITED, 39/4749, R.MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI - 682 016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2096 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 19428/2012(C) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER(ASSESSMENT), DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM, KOCHI- 682 015.
2 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
FAB INDIA OVERSEAS(P)LTD., 39/4749, R.MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI-682 016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2103 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 10293/2018(J) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXATION AND FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM-695 001.
3 ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THIRUVANANTHAPURAM-695 001.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S. JUBILANT FOOD WORKS LIMITED REGISTERED OFFICE AT 1A, SECTOR 16A, NOIDA 200301, HAVING BRANCH AT UNIT NO.2,5, SEVENTH FLOOR, TEJASWANI BUILDING, KARIAVATTOM, TECHNO PARK, THIRUVANANTHAPURAM-695 581, REPRESENTED BY ITS DEPUTY MANAGER, FINANCE AND ACCOUNTS.
R1 BY ADV. SRI.JOSEPH KODIANTHARA (SR.) R1 BY ADV. SRI.V.ABRAHAM MARKOS R1 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R1 BY ADV. SRI.ISAAC THOMAS R1 BY ADV. SRI.P.G.CHANDAPILLAI ABRAHAM
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2111 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 31422/2016(C) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.
2 THE ASSISTANT COMMISSIONER SPECIAL CIRCLE-III, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM - 682 015.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S.R.P.TELEBUY SKYSHOP (P) LTD DESHABHIMANI, KALOOR, KOCHI, REPRESENTED BY ITS ASSISTANT REGIONAL MANAGER MR.RATHEESH K.
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2116 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 4408/2015(A) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM, KOCHI-682 015.
2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
FAB INDIA OVERSEAS (P) LIMITED 39/4749, R.MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI-682 016, REPRESENTED BY ITS AUTHORISED SIGNATORY ARCHANA NANDAL.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2133 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 1111/2017(L) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY,COMMERCIAL TAXES TAXES,GOVERNMENT OF KERALA,TRIVANDRUM, KERALA 695002
2 THE COMMISSIONER OF COMMERCIAL TAXES DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA - 695 002.
3 ASSISTANT COMMISSIONER -IV SPECIAL CIRCLE - II, COMMERCIAL TAXES, ERNAKULAM - 682 018.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S. ADITYA BIRLA NUVO LTD (NOW KNOWN AS M/S ,ADITYA BIRLA FASHIONS AND RETAILS LTD),M.G.ROAD,ERNAKULAM,KERALA,REPRESENTED BY ITS AUTHORIZED SIGNATORY, PIN- 682016
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2143 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 24232/2017(D) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA, REREPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA - 695002.
2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA- 695002.
3 COMMERCIAL TAX OFFICER, OFFICE OF THE COMMERCIAL TAX OFFICER, IV CIRCLE, COMMERCIAL TAXES, KOZHIKODE, KERALA- 673 020.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S ADITYA BIRLA FASHIONS AND RETAIL LIMITED, HILTE MALL, (KOZHIKODE, KERALA - 673021, REPRESENTED BY ITS AUTHORISED SIGNATORY, PRAMOD BISWAL.
R1 BY ADV. SRI.SHAJI THOMAS OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2153 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 17372/2018(V) OF HIGH COURT OF KERALA
APPELLANT/S:
SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S LIFESTYLE INTERNATIONAL PVT. LTD. HILITE CITY MALL, 3-C-1043, OLAVANNA GRAMA PANCHAYATH, PALAZHI DESOM, KOZHIKODE-673 014, REPRESENTED BY ITS AUTHORIZED SIGNATORY PRAVEEN K, REGIONAL COMMERCIAL MANAGER.
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.2245 OF 2018
AGAINST THE ORDER/JUDGMENT IN WP(C) 31766/2015(U) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE II, ERNAKULAM, KOCHI-682015.
2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
M/S. FABINDIA OVERSEAS PVT. LTD. 39/4749, R MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI-682016 REPRESENTED BY ITS AUTHORIZED SIGNATORY, UNNIKRISHNAN C.
R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1058 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 30423/2016(C) OF HIGH COURT OF KERALA
APPELLANT/S:
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
1 M/S. ADITYA BIRLA FASHIONS RETAILS LTD., HILTE MALL, KOZHIKODE, KEREALA, REPRESENTED BY ITS AUTHORIZED SIGNATORY.
R1 BY ADV. SRI.SHAJI THOMAS
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1157 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 33426/2017(C) OF HIGH COURT OF KERALA
APPELLANT/S:
REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA 695 002.
2 COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA 695 002.
3 ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, SPECIAL CIRCLE-III, ERNAKULAM-682015.
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
1 MADURA GARMENTS LIFESTYLE RETAIL COMPANY LTD. (NOW KNOWN AS M/S ADITYA BIRLA FASHIONS AND RETAILS LTD), HILTE MALL, KOZHIKODE, KERALA REPRESENTED BY ITS AUTHORIZED SIGNATORY, PRAMOD BISWAL.
R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.JEN JAISON
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
WA.No.1273 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 32432/2017(D) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE ASSISTANT COMMISSIONER (ASSESSMENT). COMMERCIAL TAXES DEPARTMENT, SPECIAL CIRCLE-I, ERNAKULAM-682 016
BY SR.GP- SRI. MOHAMMED RAFIQ
RESPONDENT/S:
JOY ALUKKAS INDIA PRIVATE LIMITED DOOR NO. 40/2096 A AND B, PEEVES TRITON, MARINE DRIVE, SHANMUGHAM ROAD, ERNAKULAM, COCHIN-682 031
R1 BY ADV. SRI ASWIN GOPAKUMAR(BY ORDER)
OTHER PRESENT:
COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2019, ALONG WITH WA.1923/2018 AND CONNECTED CASES, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
W.A.1923/18 & con. cases
27
C.K. ABDUL REHIM & AMIT RAWAL, JJ.
------------------------------------------------W.A.Nos.1923, 1926, 1949, 1964, 1993, 2008, 2011, 2015, 2019, 2034, 2038, 2041, 2058, 2073, 2090, 2096, 2103, 2111, 2116, 2133, 2143, 2153 & 2245 of 2018 and Nos.1058, 1157 & 1273 of 2019 ------------------------------------------------Dated this the 19th of February, 2020
JUDGMENT
Amit Rawal, J.
3. Levy of surcharge on sales and purchase taxes .- (1) The tax payable under sub-section (1) of section 5 of the Kerala General Sales Tax Act, 1963, by a dealer in foreign liquor shall be increased by a surcharge at the rate of ten per cent, and the provisions of the Kerala General Sales Tax Act, 1963 shall apply in relation to the said surcharge as they apply in relation to the tax payable under the said Act.
W.A.1923/18 & con. cases
28
(1A) The tax payable under sub-sections (1) and (2) of section 6 of the Kerala Value Added Tax Act, 2003 (30 of 2004), other than declared goods as defined in section 14 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956) shall, in the case of national or multinational companies functioning in the State as retail chains or direct marketing chains who import not less than fifty per cent of their stock from outside the State or country and not less than seventy-five per cent of whose sales are retail business, and whose total turnover exceeds five crore rupees per annum, but excluding such class of dealers of certain commodities, which may be notified by the Government from time to time, be increased by a surcharge at the rate of ten per cent, and the provisions of the surcharge as they apply in relation to the tax payable under the said Act.
Explanation 1: For the purpose of this section big retail chains and direct marketing chains mean retail sales outlets or part of retail sales outlets of companies which share a registered business name or commercial name by way of franchisee agreements or otherwise with standardized sales, purchase and promotional activities.
Explanation II: For the purpose of this section 'retail business' shall mean sales to persons other than registered dealers.
(2) Notwithstanding anything contained in sub-section (1) of section 22 of the Kerala General Sales Tax Act, 1963 no dealer referred to in sub-section (1) of section 30 of the Kerala Value Added Tax Act, 2003, no dealer referred to in sub-sections (1) and (1A) shall be entitled to collect the
W.A.1923/18 & con. cases
29
surcharge payable under the said sub-sections.
(3) Any dealer who collects the surcharge payable under sub-sections (1) and (1A) in contravention of the provisions of sub-section (2) shall be punishable with fine which may extent to one thousand rupees and no court below the rank of a Magistrate of the first class shall try any such offence.
W.A.1923/18 & con. cases
30
submitted that the judgment/order of the learned Single Judge is liable to be set-aside as the imposition of additional levies on the “big chains” coming into the “retail sector” has been on the basis of the demand raised by almost all sections of society. He referred to the provisions of Articles
301 to 304 of the Constitution of India and the explanation attached
thereto, including Section 3(1A) of 1957 Act. On going through the provisions of Section 3(1A) (ibid), for the purpose of imposition of levy, the following conditions are to be cumulatively met by the dealer:-
iii) It imports not less than 50% of its stock from outside the State of Kerala or country; and
iv) 75% of its sale are retail business; and
The explanation attached to Section 3(1A) elucidates what
big retail chains and ‘Direct Retail Chains and Retail Business mean for the purpose of applicability of the provisions of the Act.
W.A.1923/18 & con. cases
31
W.A.1923/18 & con. cases
32
of tax only by dealers with units outside the said States. The aforementioned notifications were upheld by the Hon’ble Supreme Court on the premise that it was intended to benefit a specific class of industrial units and for a limited period of time, therefore, the amendment in the Act was based upon “Intelligible Differentia” and in no manner fell within the ambit of “discrimination” as sought to be projected by the respondents.
taxes in respect of the goods produced locally, which was held to be constitutionally permissible and not offensive to Article 304(a). It was held that the exemption given to manufacturers of edible oil was totally unconditional, while the producers of edible oil from industries in adjoining States had to pay sales tax @ 8%. It is in this backdrop, the matter was referred to a larger bench.
W.A.1923/18 & con. cases
33
were referred to show that once the Single Bench did not accept the contention of respondents qua “unfavourable bias” and in the absence of any cross writ appeal, the findings of the learned Single Bench in striking down the amendment to be actuated out of unintelligible differentia is not sustainable in the eyes of law. Though the learned Single Bench has also relied upon certain parameters of the Hon'ble Supreme Court, but if
the judgment is read in its entirety, the pith and substance would reveal
that Legislature is not denuded to cause amendment for imposition of
W.A.1923/18 & con. cases
34
levy to a specified class of persons based upon reasonable classification. The respondents are handful people, who are importing goods from outside the State and selling with the local producers being big chains. The imposition of levy, therefore, cannot be said to be discriminatory or violative of Article 301 of the Constitution.
W.A.1923/18 & con. cases
35
surcharge cannot be doubted as the same is vested by Article 304(a) itself. The alleged levy creates a class of dealers on whom it is applicable and it is for the policy makers to decide the category to which a taxation law has to be applied. Such power cannot be questioned unless it is exercised in a malafide manner resulting in arbitrariness or discrimination. The present levy is on big business houses, therefore, it is based upon the rational and intelligible basis.
a) Digvijay Cement Co. Versus State of Rajasthan, AIR 1997
SC 2609, a judgment of the Hon’ble Supreme Court between the
W.A.1923/18 & con. cases
36
same parties in subsequent decision, the aforementioned judgment, relied upon by the Single Bench, has been overruled in a judgment reported as AIR 2000 SC 680;
b) M/s. S. Kodar Versus State of Kerala, 1974 4 SCC 422 where
the State having exercised a wider power in the domain of taxation by
creating different classes for the purpose of levy of taxes has been upheld and not violative of Article 19(1)(g) of the Constitution, much less Article 14;
c) G anga Sugar Corporation Ltd. Versus State of Uttar
Pradesh, 1980 (1) SCC 223 , assailment of the imposition of the surcharge was found not to be violative of Article 14 of the Constitution of India, on the premise, that the State had a freedom to adopt any classification in the matters of taxation;
d) E ast India Tobacco Company Versus State of Andhra
Pradesh, 1963 (1) SCR 404, the constitutional validity of Andhra Act 14 of 1955 was assailed on the ground that it imposed tax on Virginia tobacco while leaving out of country to be violative of Article
W.A.1923/18 & con. cases
37
decision in case of Kunnathat Thathunni Moopil Nair Versus The
State of Kerala , AIR 1961 SC 552;
e) In R.K.Garg Versus Union of India, 1981 (4) SCC 675, it was
held that classification should not be arbitrary, but rational;
f) Elel Hotels and Investments Limited Versus Union of India,
1989 (3) SCC 698, that, the differentia created by the Legislation impugned therein was found to be intelligible and endowed with a rational nexus to the objects of the Legislation.
g) Shree Digvijay Cement Co. Ltd and Others vs. State of
Rajasthan and Others (2000) 1 SCC 688, a notification of 1997 issued by the State of Rajasthan under the relevant provisions of Central Sales Tax Act reducing the rate of sales tax on inter state sale of cement but any dealer from the State to 4% was, assailed and nowhere the requirement of furnishing declaration form was challenged by the manufacture of cement having their manufacturing wing in the State of Gujarat. The said notification was upheld on the premise that it did not have the effect of preventing or hindering the free movement of goods from one state to another nor violative of
W.A.1923/18 & con. cases
38
Article 301 of the Constitution.
h) State of Kerala vs. Fr.William Fernandez [2018 (1) KLT SN
48, the Nine Judge Constitution Bench after answering several
questions pertaining to entry tax legislations of different states, the issue pertaining to the levibility of entry tax on the imported/foreign goods was left open to be answered by the regular bench. The regular bench upheld the notification as it did not infringe provision of Article 304 (a) of the Constitution of India.
i) Spences Hotel Pvt. Ltd and Another vs. State of West Bengal
and Others (1991) 2 SCC 154, It is in the domain of the legislature to augment the debts keeping in view the evolvement of the social, economic, commercial and scientific developments. The concept of equality has to be viewed in the context of distributive justice. In other words, the perfect equality cannot be attained in taxation.
W.A.1923/18 & con. cases
39
W.A.1923/18 & con. cases
40
supplied). In other words, a dealer importing more than 50% of goods sold by it, will be subjected to higher tax as compared to a similarly placed dealer procuring local goods. This discrimination in levy of surcharge under Section 3(1A) of 1957 Act is based only on the procurement of goods from outside the State of Kerala. If the imports are not more than 50% of the stock from outside the State of Kerala or Country, would not be liable to pay levy being national or multinational company, retail chain or a direct marketing chain having 75% of the sale as retail business and its total turnover exceeds five crores per annum. If a dealer who satisfies all the conditions except the condition of import, would not be liable to pay the surcharge. Thus, this discrimination between dealers importing goods viz-a-viz dealers procuring local goods is glaringly evident. Mr.Kumar relied upon following case laws.
1.a) State of Uttar Pradesh and Others vs. Jaiprakash Associates Limited (2014) 4 SCC 720 , the applicability of provisions of Articles 301, 303 and 304 (a) were thrashed out and it was held that the principle of 'non discriminatory tax' is a sina qua non for free movement of goods between nations or states in several
W.A.1923/18 & con. cases
41
jurisdictions and also in international trade and policy. Discrimination has to be in terms of effect and intention behind such discrimination. Intent is referred to as 'aim' or 'motive' or 'purpose' of such discrimination and the other factor commonly associated with discrimination is 'effect', that is, whether a measure has a discriminatory effect or not. The effect of tax should not be such that two like goods are given discriminatory treatment. The Legislature should not exercise power to bring about discrimination between imported and similar goods manufactured in the state.
1.b) Vikram Cement and Another v. State of Madhya
Pradesh and Others (2015) 11 SCC 708, where the appellants
were carrying on manufacture and sale of cement and had been paying entry tax for entry of the goods in the territory of Madhya Pradesh but as per the explanation added thereto, there was a change in the imposition of the entry on a higher side. The explanation was that the amount shall not be refunded in any case on the basis that dealer had paid the tax at a higher rate. On analysis of the argument, the explanation caused by the Madhya Pradesh Government, was
W.A.1923/18 & con. cases
42
held, to be discriminatory in nature.
1.c) Union of India and Others v. N.S. Rethnam and Sons
(2015) 10 SCC 681, where two notifications pertaining to same
goods were issued granting partial exemption from payment of excise duty. The aforementioned notification on challenge was held to be based on unintelligible differentia or unreasonable classification. The Supreme Court in para 14 observed that permissible classification requires fulfillment of two conditions. It must be founded on “Intelligible Differentia” which must have a rationale to the object sought to be achieved by the statute in question.
1.d) H.Anraj v. Government of Tamil Nadu (1986) 1 SCC 414. para 38.
1.e) The State of Rajasthan and Another v. M/s.Ghasiram
Mangilal Etc. 1969(2) SCC 710. where after noticing the challenge
laid to the exemption from payment of tax on sale of Bardana, (old,
new or being received as container) except on the first point in the
series of sale in the State, the Hon'ble Supreme Court found that it
W.A.1923/18 & con. cases
43
was altogether unnecessary to go into the question of applicability of Articles 301 and 304 (a) as there was no such discrimination between
the goods so imported and the goods which were manufactured or produced in the State.
1.f) State of Uttar Pradesh and Others v. Deepak Fertilizers &
Petrochemical Corporation Ltd. (2007) 10 SCC 342
1.g) Aashirwad Films v. Union of India and Others (2007) 6
SCC 624.
W.A.1923/18 & con. cases
44
does not satisfy the first limitation prescribed under Article 304(a), i.e., similar levy on dealers engaged in sale of local goods and the second limitation permitting the State to levy a tax under Article 304(a) to be not discriminatory. On bestowal of ratio’s in Video Electronics and Mahavir Oil Mills, referred to above, and various other judgments, the matter was referred to larger Bench of nine Judges. The majority view in Para 69 conceptualized that the power to levy tax on goods imported from other States or Union Territories does not mean that it is unqualified or unrestricted. There are two restrictions on that power. The words “to which similar goods manufactured or produced in that State are subject” impose the first restriction on the power of the State Legislature to levy any such tax. It would imply that a tax on import of goods from other States will be justified only if similar goods manufactured or produced in the State are also taxed. The levy should not create any discrimination between the goods so imported or manufactured and produced. State Government in the matter of levy of taxes cannot discriminate between the goods imported from other States and manufactured or produced within the State levying such tax.
W.A.1923/18 & con. cases
45
big retail chains’ would justify the exemption to big chains in retail sector’ if their procurements are less than 50% from outside the State of
W.A.1923/18 & con. cases
46
Kerala. In other words, the intention was favourable towards small retailers and not producers or manufacturers.
W.A.1923/18 & con. cases
47
Constitution of India.
“301. Freedom of trade, commerce and intercourse Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free .
(1) Notwithstanding anything in Article 302, neither Parliament nor the Legislature of a State shall have power to make any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade
W.A.1923/18 & con. cases
48
and commerce in any of the Lists in the Seventh Schedule. (2) Nothing in clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.
(a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause shall be introduced or moved in the Legislature of a State without the previous sanction of the President.”
out the following principles:
W.A.1923/18 & con. cases
49
by Article 304(a). It follows that levy of a nondiscriminatory tax would not constitute an infraction of Article 301.
W.A.1923/18 & con. cases
50
as a local area and whether entry tax can be levied on goods entering the landmass of India from another country are left open to be determined in appropriate proceedings.
W.A.1923/18 & con. cases
51
intelligible differentia or reasonable classification. In other words, State has not been able to bring in a distinction to class of persons disentitling the relief as sought by the respondents.
W.A.1923/18 & con. cases
52
permissible and not offensive of 304(a) as exemption given to the manufacure of edible oil was total and unconditional while the producers of similar raw materials from the industries, in adjoining state, had to pay
extra sales tax.
“132. We respectfully agree with the line of reasoning adopted in Video Electronics (supra). The expression “discrimination” has not been defined in the Constitution though the same has fallen for interpretation of this Court on several occasions. The earliest of these decisions was rendered in Kathi Raning Rawat v. The State of Saurashtra AIR 1952 SC 123, where a sever-Judge Bench of this Court held that all legislative differentiation is not necessarily discriminatory. Relying upon the meaning of the expression in Oxford Dictionary, Patanjali Sastri, CJ (as His Lordship then was) explained:
“7. All legislative differentiation is not necessarily discriminatory. In fact, the word “discrimination” does not occur in Article 14. The expression “discriminate against” is used in Article 15(1) and Article 16(2), and it means, according to the Oxford Dictionary, “to make an adverse distinction with
W.A.1923/18 & con. cases
53
regard to; to distinguish unfavourably from others”. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies. . . . .”
“19. I think that a distinction should be drawn between “discrimination without reason” and “discrimination with reason”. The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of
W.A.1923/18 & con. cases
54
circumstances. The main objection to the West Bengal Act was that it permitted discrimination “without reason” or without any rational basis.”
Any change to a fiscal enactment on the touchstone of Article 304(a) must in our opinion be tested by the same standard as in Kathi's case (supra). The Court ought to examine whether the differentiation made is intended or inspired by an element of unfavourable bias in favour of the goods produced or manufactured in the State as against those imported from outside. If the answer be in the affirmative, the differentiation would fall foul of Article 304(a) and may tantamount to discrimination. Conversely, if the Court were to find that there is no such element of intentional bias favouring the locally produced goods as against those from outside, it may have to go further and see whether the differentiation would be supported by valid reasons. In the words of Fazl Ali, J. discrimination without reason would be unconstitutional whereas discrimination with reason may be legally acceptable. In Video Electronic's case, this Court noted that the differentiation made was supported by reasons. This Court held that if economic unity of India is one of the Constitutional aspirations and if attaining and maintaining such unity is a Constitutional goal, such unity and objectives can be achieved only if all parts of the Country develop equally. There is, if we may say so, with respect considerable merit in that line of reasoning. A State which is economically and industrially backward on account of several factors must have the opportunity
W.A.1923/18 & con. cases
55
and the freedom to pursue and achieve development in a measure equal to other and more fortunate regions of the country which have for historical reasons, developed faster and thereby acquired an edge over its less fortunate country cousins. Economic unity from the point of view of such underdeveloped or developing states will be an illusion if they do not have the opportunity or the legal entitlement to promote industries within their respective territories by granting incentives and exemptions necessary for such growth and development. The argument that power to grant exemption cannot be used by the State even in case where such exemptions are manifestly intended to promote industrial growth or promoting industrial activity has not appealed to us. The power to grant exemption is a part of the sovereign power to levy taxes which cannot be taken away from the States that are otherwise competent to impose taxes and duties. The conceptual foundation on which such exemptions and incentives have been held permissible and upheld by this Court in Video's case is, in our opinion, juristically sound and legally unexceptionable. Video Electronics, therefore, correctly states the legal position as regards the approach to be adopted by the Court while examining the validity of levies. So long as the differentiation made by the States is not intended to create an unfavourable bias and so long as the differentiation is intended to benefit a distinct class of industries and the life of the benefit is limited in terms of period, the benefit, must be held to flow from a legitimate desire to promote industries within its territory.
W.A.1923/18 & con. cases
56
Grant of exemptions and incentives in such cases must be deemed to have been inspired by considerations which in the larger context help achieve the Constitutional goal of economic unity.”
W.A.1923/18 & con. cases
57
actuated from an unfavourable bias would not help the State to defend the amendment as it is not limited in terms of period. In paragraph 133 above, the Supreme Court did not end after noticing unfavourable bias but added more by clarifying that it would be discriminatory if not applied equally.
W.A.1923/18 & con. cases
58
reasons to interfere in the impugned judgment of learned Single Judge.
Resultantly, the appeals are dismissed.
C.K.Abdul Rehim, Judge
Amit Rawal, Judge
kkb.
2 issues framed by the court
Did the surcharge on qualifying retail chains importing goods, without a similar levy on locally procured goods, violate Article 304(a)?
Was the indefinite surcharge supported by reasonable classification or intelligible differentia?
Colour shows how this judgement treated each authority
Jindal Stainless Steel Ltd. & Anr. Versus State of Haryana & OrsApplied¶653
Jindal Stainless Steel Ltd. & Anr. Versus State of Haryana & Ors, reported at 2016 VOL. 66 SC-CB,
Shree Mahavir Oil Mills and Anr. Versus State of Jammu and Kashmir and Ors.Referred¶659
Shree Mahavir Oil Mills and Anr. Versus State of Jammu and Kashmir and Ors.,
Video Electronics Versus State of PunjabDistinguished¶659
Video Electronics Versus State of Punjab, (1990) 3 SCC 87 · Who else cites this
Digvijay Cement Co. Versus State of RajasthanReferred¶540
Digvijay Cement Co. Versus State of Rajasthan,
Digvijay Cement Co. Versus State of RajasthanReferred¶544
AIR 2000 SC 680; · Who else cites this
M/s. S. Kodar Versus State of KeralaReferred¶545
M/s. S. Kodar Versus State of Kerala, 1974 4 SCC 422 · Who else cites this
G anga Sugar Corporation Ltd. Versus State of Uttar PradeshReferred¶548
1980 (1) SCC 223 · Who else cites this
E ast India Tobacco Company Versus State of Andhra PradeshReferred¶550
1963 (1) SCR 404, · Who else cites this
Kunnathat Thathunni Moopil Nair Versus The State of KeralaReferred¶555
AIR 1961 SC 552; · Who else cites this
R.K.Garg Versus Union of IndiaReferred¶557
R.K.Garg Versus Union of India, 1981 (4) SCC 675, · Who else cites this
Elel Hotels and Investments Limited Versus Union of IndiaReferred¶559
Elel Hotels and Investments Limited Versus Union of India,
Shree Digvijay Cement Co. Ltd and Others vs. State of Rajasthan and OthersReferred¶561
(2000) 1 SCC 688, · Who else cites this
State of Kerala vs. Fr.William FernandezReferred¶566
State of Kerala vs. Fr.William Fernandez
Spences Hotel Pvt. Ltd and Another vs. State of West Bengal and OthersReferred¶569
(1991) 2 SCC 154, · Who else cites this
State of Uttar Pradesh and Others vs. Jaiprakash Associates LimitedReferred¶579
State of Uttar Pradesh and Others vs. Jaiprakash Associates Limited (2014) 4 SCC 720 · Who else cites this
Vikram Cement and Another v. State of Madhya Pradesh and OthersReferred¶583
(2015) 11 SCC 708, · Who else cites this
Union of India and Others v. N.S. Rethnam and SonsReferred¶589
Union of India and Others v. N.S. Rethnam and Sons
H.Anraj v. Government of Tamil NaduReferred¶592
H.Anraj v. Government of Tamil Nadu (1986) 1 SCC 414. · Who else cites this
The State of Rajasthan and Another v. M/s.Ghasiram Mangilal Etc.Referred¶593
1969(2) SCC 710. · Who else cites this
State of Uttar Pradesh and Others v. Deepak Fertilizers & Petrochemical Corporation Ltd.Referred¶602
(2007) 10 SCC 342 · Who else cites this
Aashirwad Films v. Union of India and OthersReferred¶604
Aashirwad Films v. Union of India and Others
Pasa Associates Pvt. Ltd. Versus State of Chattisgarh & Ors.Referred¶619
Pasa Associates Pvt. Ltd. Versus State of Chattisgarh & Ors., (2015) 85 VST 439.
Kathi Raning Rawat vs. State of SaurashtraRelied on¶687
Kathi Raning Rawat vs. State of Saurashtra AIR 1952 SC 123 · Who else cites this
4 provisions across 2 enactments
THE STATE OF KERALA
ADITYA BIRLA NUVO LTD., (NOW KNOWN AS M/S ADITYA BIRLA FASHIONS AND RETAILS LTD)
M/S FABINDIA OVERSEAS (P) LTD.
M/S.R.P.TELEBUY SKYSHOP (P) LTD.
M/S.LIFESTYLE INTERNATIONAL PVT.LTD.
M/S. JUBILANT FOOD WORKS LIMITED
C.K.ABDUL REHIM
AMIT RAWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
