Dismissed

The State of Kerala, v. Aditya Birla Fashions and Retail Limited

Kerala HC19 Feb 2020WA/2143/2018

Case brief

AI extract

What is this about?

Bunch of writ appeals by the State against the learned Single Judge's order striking down the surcharge levied on big retail chains importing goods into Kerala. The Division Bench held the levy discriminates against dealers importing goods, is not limited in period, and is hit by Article 304(a) of the Constitution; appeals dismissed.

What the court decided

AI extract

The State of Kerala, Vs Aditya Birla Fashions and Retail… — GST and Indirect Tax | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶4

¶5

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶6

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶7

WA.No.1923 OF 2018

¶8

AGAINST THE ORDER/JUDGMENT IN WP(C) 1108/2017(K) OF HIGH COURT OF KERALA

¶9

APPELLANT/S:

¶10

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA-695002.

¶11

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA-695002.

¶12

3 ASSISTANT COMMISSIONER-IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA-682018.

¶13

BY SR.GP- SRI. MOHAMMED RAFIQ

¶14

RESPONDENT/S:

¶15

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.

¶16

R1 BY ADV. SRI.SHAJI THOMAS

¶17

OTHER PRESENT:

¶18

, COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶19

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:

¶20

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶21

PRESENT

¶22

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶23

¶24

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶25

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶26

WA.No.1926 OF 2018

¶27

AGAINST THE ORDER/JUDGMENT IN WP(C) 1162/2017(U) OF HIGH COURT OF KERALA

¶28

APPELLANT/S:

¶29

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA -695 002.

¶30

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA-695002.

¶31

3 ASSISTANT COMMISSIONER-IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA-682018.

¶32

BY SR.GP- SRI. MOHAMMED RAFIQ,

¶33

RESPONDENT/S:

¶34

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.

¶35

R1 BY ADV. SRI.SHAJI THOMAS

¶36

OTHER PRESENT:

¶37

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶38

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:

¶39

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶40

PRESENT

¶41

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶42

¶43

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶44

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶45

WA.No.1949 OF 2018

¶46

AGAINST THE ORDER/JUDGMENT IN WP(C) 1123/2017(M) OF HIGH COURT OF KERALA

¶47

APPELLANT/S:

¶48

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA 695002

¶49

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA. 695002

¶50

3 ASSISTANT COMMISSIONER -IV SPECIAL CIRCLE- II, COMMERCIAL TAXES, ERNAKULAM, KERALA. 682018

¶51

BY SR.GP- SRI. MOHAMMED RAFIQ

¶52

RESPONDENT/S:

¶53

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

¶54

R1 BY ADV. SRI.SHAJI THOMAS OTHER PRESENT:

¶55

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶56

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:

¶57

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶58

PRESENT

¶59

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶60

¶61

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶62

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶63

WA.No.1964 OF 2018

¶64

AGAINST THE ORDER/JUDGMENT IN WP(C) 1115/2017(L) OF HIGH COURT OF KERALA

¶65

APPELLANT/S:

¶66

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES,GOVERNMENT OF KERALA, TRIVANDRUM, KERALA- 695002.

¶67

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA- 695002.

¶68

3 ASSISTANT COMMISSIONER -IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA- 682018

¶69

BY SR.GP- SRI. MOHAMMED RAFIQ

¶70

RESPONDENT/S:

¶71

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

¶72

R1 BY ADV. SRI.SHAJI THOMAS

¶73

OTHER PRESENT:

¶74

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶75

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:

¶76

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶77

PRESENT

¶78

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶79

¶80

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶81

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶82

WA.No.1993 OF 2018

¶83

AGAINST THE ORDER/JUDGMENT IN WP(C) 39888/2016(I) OF HIGH COURT OF KERALA

¶84

APPELLANT/S:

¶85

1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE II, ERNAKULAM, KOCHI 682015

¶86

2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVNANTHPAURAM-695001.

¶87

BY SR.GP- SRI. MOHAMMED RAFIQ

¶88

RESPONDENT/S:

¶89

M/S FABINDIA OVERSEAS (P) LTD. 39/4749, R. MADHAVAN NAIR ROAD ERNAKULAM, KOCHI 682016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.

¶90

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:

¶91

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶92

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:

¶93

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶94

PRESENT

¶95

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶96

¶97

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶98

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶99

WA.No.2008 OF 2018

¶100

AGAINST THE ORDER/JUDGMENT IN WP(C) 26980/2016(V) OF HIGH COURT OF KERALA

¶101

APPELLANT/S:

¶102

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA-695002

¶103

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES,TRIVANDRUM, KERALA-695002

¶104

3 COMMERCIAL TAX OFFICER, OFFICE OF THE COMMERCIAL TAX OFFICER,IV CIRCLE,COMMERCIAL TAXES,KOZHIKODE,KERALA-673 020

¶105

BY SR.GP- SRI. MOHAMMED RAFIQ

¶106

RESPONDENT/S:

¶107

ADITYA BIRLA FASHIONS AND RETAIL LIMITED HILTE MALL, (KOZHIKODE, KERALA- 673 021, REPRESENTED BY ITS AUTHORISED SIGNATORY, PRAMOD BISWAL

¶108

R1 BY ADV. SRI.SHAJI THOMAS

¶109

OTHER PRESENT:

¶110

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶111

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:

¶112

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶113

PRESENT

¶114

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶115

¶116

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶117

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶118

WA.No.2011 OF 2018

¶119

AGAINST THE ORDER/JUDGMENT IN WP(C) 1113/2017(L) OF HIGH COURT OF KERALA

¶120

APPELLANT/S:

¶121

1 STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA - 695 002.

¶122

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM , KERALA 695002

¶123

3 ASSISTANT COMMISSIONER -IV, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM , KERALA 682018

¶124

BY SR.GP- SRI. MOHAMMED RAFIQ

¶125

RESPONDENT/S:

¶126

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.

¶127

R1 BY ADV. SRI.SHAJI THOMAS OTHER PRESENT:

¶128

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶129

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:

¶130

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶131

PRESENT

¶132

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶133

¶134

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶135

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶136

WA.No.2015 OF 2018

¶137

AGAINST THE ORDER/JUDGMENT IN WP(C) 1112/2017(L) OF HIGH COURT OF KERALA

¶138

APPELLANT/S:

¶139

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY,COMMERCIAL TAXES,GOVERNMENT OF

¶140

KERALA,TRIVANDRUM,KERALA,695002.

¶141

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA695002.

¶142

3 ASSISTANT COMMISSIONER-IV SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM, KERALA-682 018.

¶143

BY SR.GP- SRI. MOHAMMED RAFIQ

¶144

RESPONDENT/S:

¶145

M/S ADITYA BIRLA NUVO LTD.,

¶146

(NOW KNOWN AS M/S ADITYA BIRLA FASHIONS AND RETAILS LTD),M.G.ROAD, ERNAKULAM, KERALA,REPRESENTED BY ITS AUTHORISED SIGNATORY 682016.

¶147

R1 BY ADV. SRI.SHAJI THOMAS

¶148

OTHER PRESENT:

¶149

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶150

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:

¶151

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶152

PRESENT

¶153

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶154

¶155

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶156

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶157

WA.No.2019 OF 2018

¶158

AGAINST THE ORDER/JUDGMENT IN WP(C) 12707/2017(K) OF HIGH COURT OF KERALA

¶159

APPELLANT/S:

¶160

1 THE STATE OF KERALA

¶161

REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶162

2 THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-111,ERNAKULAM 682 016

¶163

3 INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KAKKANAD, ERNAKULAM 682 030.

¶164

BY SR.GP- SRI. MOHAMMED RAFIQ

¶165

RESPONDENT/S:

¶166

M/S.R.P.TELEBUY SKYSHOP (P) LTD. DESHABHIMANI, KALOOR, KOCHI, REPRESENTED BY ITS ASSISTANT REGIONAL MANAGER MR.RATHEESH.K.

¶167

OTHER PRESENT:

¶168

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶169

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:

¶170

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶171

PRESENT

¶172

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶173

¶174

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶175

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶176

WA.No.2034 OF 2018

¶177

AGAINST THE ORDER/JUDGMENT IN WP(C) 1166/2017(U) OF HIGH COURT OF KERALA

¶178

APPELLANT/S:

¶179

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA -695 002.

¶180

2 THE COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM, KERALA-695002.

¶181

3 ASSISTANT COMMISSIONER -IV, SPECIAL CIRCLE - II, COMMERCIAL TAXES, ERNAKULAM, KERALA-682018.

¶182

BY SR.GP- SRI. MOHAMMED RAFIQ

¶183

RESPONDENT/S:

¶184

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.

¶185

R1 BY ADV. SRI.SHAJI THOMAS

¶186

OTHER PRESENT:

¶187

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶188

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:

¶189

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶190

PRESENT

¶191

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶192

¶193

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶194

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶195

WA.No.2038 OF 2018

¶196

AGAINST THE ORDER/JUDGMENT IN WP(C) 8900/2015(J) OF HIGH COURT OF KERALA

¶197

APPELLANT/S:

¶198

1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM , KOCHI 682015.

¶199

2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001

¶200

BY SR.GP- SRI. MOHAMMED RAFIQ

¶201

RESPONDENT/S:

¶202

M/S. FABINDIA OVERSEAS (P) LTD. 39/4749, R. MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI 682016, REPRESENTED BY ITS AUTHORISED SIGNATORY ARCHANA NANDAL.

¶203

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:

¶204

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶205

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:

¶206

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶207

PRESENT

¶208

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶209

¶210

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶211

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶212

WA.No.2041 OF 2018

¶213

AGAINST THE ORDER/JUDGMENT IN WP(C) 22192/2012(Y) OF HIGH COURT OF KERALA

¶214

APPELLANT/S:

¶215

1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES,SPECIAL CIRCLE II,ERNAKULAM,KOCHI,682015

¶216

2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.

¶217

BY SR.GP- SRI. MOHAMMED RAFIQ

¶218

RESPONDENT/S:

¶219

M/S. FAB INDIA OVERSEAS PVT. LIMITED 39/4729,R.MADHAVAN NAIR ROAD,ERNAKULAM,KOCHI,682016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.

¶220

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:

¶221

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶222

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:

¶223

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶224

PRESENT

¶225

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶226

¶227

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶228

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶229

WA.No.2058 OF 2018

¶230

AGAINST THE ORDER/JUDGMENT IN WP(C) 39948/2017(P) OF HIGH COURT OF KERALA

¶231

APPELLANT/S:

¶232

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA - 695 002.

¶233

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVNDRUM, KERALA-695002.

¶234

3 ASSISTANT COMMISSIONER, SPECIAL CIRCLE-II,STATE GOODS AND SERVICES TAX DEPARTMENT, KOZHIKODE-673121.

¶235

BY SR.GP- SRI. MOHAMMED RAFIQ

¶236

RESPONDENT/S:

¶237

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.

¶238

R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.JEN JAISON

¶239

OTHER PRESENT:

¶240

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶241

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:

¶242

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶243

PRESENT

¶244

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶245

¶246

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶247

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶248

WA.No.2073 OF 2018

¶249

AGAINST THE ORDER/JUDGMENT IN WP(C) 33486/2017(I) OF HIGH COURT OF KERALA

¶250

APPELLANT/S:

¶251

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA-695 002.

¶252

2 THE COMMISSIONER OF TAXES, DEPARTMENT OF COMMERCIAL TAXES,TRIVANDRUM, KERALA 695 002.

¶253

3 THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES,DEPARTMENT, SPECIAL CIRCLE-11,ERNAKULAM,682 015.

¶254

BY SR.GP- SRI. MOHAMMED RAFIQ

¶255

RESPONDENT/S:

¶256

M/S MADURA GARMENTS

¶257

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.

¶258

R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.JEN JAISON

¶259

OTHER PRESENT:

¶260

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶261

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:

¶262

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶263

PRESENT

¶264

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶265

¶266

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶267

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶268

WA.No.2090 OF 2018

¶269

AGAINST THE ORDER/JUDGMENT IN WP(C) 14880/2015(H) OF HIGH COURT OF KERALA

¶270

APPELLANT/S:

¶271

1 THE ASSISTANT COMMISSIONER(ASSESSMENT), DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM, KOCHI - 682 015.

¶272

2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

¶273

BY SR.GP- SRI. MOHAMMED RAFIQ

¶274

RESPONDENT/S:

¶275

FAB INDIA OVERSEAS PRIVATE LIMITED, 39/4749, R.MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI - 682 016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.

¶276

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN

¶277

OTHER PRESENT:

¶278

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶279

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:

¶280

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶281

PRESENT

¶282

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶283

¶284

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶285

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶286

WA.No.2096 OF 2018

¶287

¶288

APPELLANT/S:

¶289

1 THE ASSISTANT COMMISSIONER(ASSESSMENT), DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM, KOCHI- 682 015.

¶290

2 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶291

BY SR.GP- SRI. MOHAMMED RAFIQ

¶292

RESPONDENT/S:

¶293

FAB INDIA OVERSEAS(P)LTD., 39/4749, R.MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI-682 016, REPRESENTED BY ITS AUTHORIZED SIGNATORY ARCHANA NANDAL.

¶294

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:

¶295

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶296

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:

¶297

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶298

PRESENT

¶299

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶300

¶301

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶302

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶303

WA.No.2103 OF 2018

¶304

AGAINST THE ORDER/JUDGMENT IN WP(C) 10293/2018(J) OF HIGH COURT OF KERALA

¶305

APPELLANT/S:

¶306

1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXATION AND FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶307

2 THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM-695 001.

¶308

3 ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THIRUVANANTHAPURAM-695 001.

¶309

BY SR.GP- SRI. MOHAMMED RAFIQ

¶310

RESPONDENT/S:

¶311

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.

¶312

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

¶313

OTHER PRESENT:

¶314

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶315

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:

¶316

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶317

PRESENT

¶318

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶319

¶320

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶321

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶322

WA.No.2111 OF 2018

¶323

AGAINST THE ORDER/JUDGMENT IN WP(C) 31422/2016(C) OF HIGH COURT OF KERALA

¶324

APPELLANT/S:

¶325

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.

¶326

2 THE ASSISTANT COMMISSIONER SPECIAL CIRCLE-III, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM - 682 015.

¶327

BY SR.GP- SRI. MOHAMMED RAFIQ

¶328

RESPONDENT/S:

¶329

M/S.R.P.TELEBUY SKYSHOP (P) LTD DESHABHIMANI, KALOOR, KOCHI, REPRESENTED BY ITS ASSISTANT REGIONAL MANAGER MR.RATHEESH K.

¶330

OTHER PRESENT:

¶331

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶332

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:

¶333

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶334

PRESENT

¶335

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶336

¶337

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶338

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶339

WA.No.2116 OF 2018

¶340

AGAINST THE ORDER/JUDGMENT IN WP(C) 4408/2015(A) OF HIGH COURT OF KERALA

¶341

APPELLANT/S:

¶342

1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE-II, ERNAKULAM, KOCHI-682 015.

¶343

2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001

¶344

BY SR.GP- SRI. MOHAMMED RAFIQ

¶345

RESPONDENT/S:

¶346

FAB INDIA OVERSEAS (P) LIMITED 39/4749, R.MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI-682 016, REPRESENTED BY ITS AUTHORISED SIGNATORY ARCHANA NANDAL.

¶347

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:

¶348

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶349

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:

¶350

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶351

PRESENT

¶352

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶353

¶354

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶355

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶356

WA.No.2133 OF 2018

¶357

AGAINST THE ORDER/JUDGMENT IN WP(C) 1111/2017(L) OF HIGH COURT OF KERALA

¶358

APPELLANT/S:

¶359

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY,COMMERCIAL TAXES TAXES,GOVERNMENT OF KERALA,TRIVANDRUM, KERALA 695002

¶360

2 THE COMMISSIONER OF COMMERCIAL TAXES DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA - 695 002.

¶361

3 ASSISTANT COMMISSIONER -IV SPECIAL CIRCLE - II, COMMERCIAL TAXES, ERNAKULAM - 682 018.

¶362

BY SR.GP- SRI. MOHAMMED RAFIQ

¶363

RESPONDENT/S:

¶364

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

¶365

R1 BY ADV. SRI.SHAJI THOMAS

¶366

OTHER PRESENT:

¶367

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶368

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:

¶369

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶370

PRESENT

¶371

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶372

¶373

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶374

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶375

WA.No.2143 OF 2018

¶376

AGAINST THE ORDER/JUDGMENT IN WP(C) 24232/2017(D) OF HIGH COURT OF KERALA

¶377

APPELLANT/S:

¶378

1 THE STATE OF KERALA, REREPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA - 695002.

¶379

2 THE COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA- 695002.

¶380

3 COMMERCIAL TAX OFFICER, OFFICE OF THE COMMERCIAL TAX OFFICER, IV CIRCLE, COMMERCIAL TAXES, KOZHIKODE, KERALA- 673 020.

¶381

BY SR.GP- SRI. MOHAMMED RAFIQ

¶382

RESPONDENT/S:

¶383

M/S ADITYA BIRLA FASHIONS AND RETAIL LIMITED, HILTE MALL, (KOZHIKODE, KERALA - 673021, REPRESENTED BY ITS AUTHORISED SIGNATORY, PRAMOD BISWAL.

¶384

R1 BY ADV. SRI.SHAJI THOMAS OTHER PRESENT:

¶385

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶386

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:

¶387

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶388

PRESENT

¶389

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶390

¶391

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶392

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶393

WA.No.2153 OF 2018

¶394

AGAINST THE ORDER/JUDGMENT IN WP(C) 17372/2018(V) OF HIGH COURT OF KERALA

¶395

APPELLANT/S:

¶396

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA-695 002

¶397

2 THE COMMISSIONER OF STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, KERALA-695 002

¶398

3 ASSISTANT COMMISSIONER SPECIAL CIRCLE-II, STATE GOODS AND SERVICE TAX DEPARTMENT, KOZHIKODE-673 121

¶399

SR.GP- SRI. MOHAMMED RAFIQ

¶400

RESPONDENT/S:

¶401

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.

¶402

OTHER PRESENT:

¶403

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶404

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:

¶405

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶406

PRESENT

¶407

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶408

¶409

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶410

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶411

WA.No.2245 OF 2018

¶412

AGAINST THE ORDER/JUDGMENT IN WP(C) 31766/2015(U) OF HIGH COURT OF KERALA

¶413

APPELLANT/S:

¶414

1 THE ASSISTANT COMMISSIONER (ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE II, ERNAKULAM, KOCHI-682015.

¶415

2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶416

BY SR.GP- SRI. MOHAMMED RAFIQ

¶417

RESPONDENT/S:

¶418

M/S. FABINDIA OVERSEAS PVT. LTD. 39/4749, R MADHAVAN NAIR ROAD, ERNAKULAM, KOCHI-682016 REPRESENTED BY ITS AUTHORIZED SIGNATORY, UNNIKRISHNAN C.

¶419

R1 BY ADV. SMT.S.K.DEVI R1 BY ADV. SRI.M.RAJ MOHAN OTHER PRESENT:

¶420

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶421

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:

¶422

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶423

PRESENT

¶424

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶425

¶426

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶427

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶428

WA.No.1058 OF 2019

¶429

AGAINST THE ORDER/JUDGMENT IN WP(C) 30423/2016(C) OF HIGH COURT OF KERALA

¶430

APPELLANT/S:

¶431

1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA 695 002.

¶432

2 COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA-695002.

¶433

3 COMMERCIAL TAX OFFICER, OFFICE OF THE COMMERCIAL TAX OFFICER, IV CIRCLE, COMMERCIAL TAXES, KOZHIKODE, KERALA-673020.

¶434

BY SR.GP- SRI. MOHAMMED RAFIQ

¶435

RESPONDENT/S:

¶436

1 M/S. ADITYA BIRLA FASHIONS RETAILS LTD., HILTE MALL, KOZHIKODE, KEREALA, REPRESENTED BY ITS AUTHORIZED SIGNATORY.

¶437

R1 BY ADV. SRI.SHAJI THOMAS

¶438

OTHER PRESENT:

¶439

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶440

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:

¶441

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶442

PRESENT

¶443

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶444

¶445

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶446

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶447

WA.No.1157 OF 2019

¶448

AGAINST THE ORDER/JUDGMENT IN WP(C) 33426/2017(C) OF HIGH COURT OF KERALA

¶449

APPELLANT/S:

¶450

1 STATE OF KERALA

¶451

REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMENT OF KERALA, TRIVANDRUM, KERALA 695 002.

¶452

2 COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA 695 002.

¶453

3 ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, SPECIAL CIRCLE-III, ERNAKULAM-682015.

¶454

BY SR.GP- SRI. MOHAMMED RAFIQ

¶455

RESPONDENT/S:

¶456

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.

¶457

R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.JEN JAISON

¶458

OTHER PRESENT:

¶459

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶460

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:

¶461

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶462

PRESENT

¶463

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶464

¶465

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶466

WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

¶467

WA.No.1273 OF 2019

¶468

AGAINST THE ORDER/JUDGMENT IN WP(C) 32432/2017(D) OF HIGH COURT OF KERALA

¶469

APPELLANT/S:

¶470

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶471

2 THE ASSISTANT COMMISSIONER (ASSESSMENT). COMMERCIAL TAXES DEPARTMENT, SPECIAL CIRCLE-I, ERNAKULAM-682 016

¶472

BY SR.GP- SRI. MOHAMMED RAFIQ

¶473

RESPONDENT/S:

¶474

JOY ALUKKAS INDIA PRIVATE LIMITED DOOR NO. 40/2096 A AND B, PEEVES TRITON, MARINE DRIVE, SHANMUGHAM ROAD, ERNAKULAM, COCHIN-682 031

¶475

R1 BY ADV. SRI ASWIN GOPAKUMAR(BY ORDER)

¶476

OTHER PRESENT:

¶477

COUNSEL FOR THE THE RESPONDENT- SRI. G.SHIVADAS

¶478

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:

¶479

W.A.1923/18 & con. cases

¶480

¶481

C.K. ABDUL REHIM & AMIT RAWAL, JJ.

¶482

------------------------------------------------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 19^th of February, 2020

¶483

JUDGMENT

¶484

Amit Rawal, J.

¶485

By this order, we shall dispose of bunch of 26 writ appeals preferred by the State of Kerala against the judgment/order of the learned Single Judge, whereby the writ petitions filed by the respondents challenging the constitutional validity of Section 3(1A) of the Kerala Surcharge on Taxes Act, 1957 (for brevity “1957 Act”), extracted below, being discriminatory, have been allowed.

¶486

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.

¶487

W.A.1923/18 & con. cases

¶488

¶489

(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.

¶490

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.

¶491

Explanation II: For the purpose of this section 'retail business' shall mean sales to persons other than registered dealers.

¶492

(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

¶493

W.A.1923/18 & con. cases

¶494

¶495

surcharge payable under the said sub-sections.

¶496

(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.

¶497

The facts and the circumstances resulting into filing of the writ petitions at the behest of the respondents, are, that on receipt of the notices dated 06.06.2016 (Exhibit P1 in WP(C).No.26980 of 2016 in W.A.2008/18), appellant-State proposed to levy and collect surcharge at the rate of 10% of the Value Added Tax (“VAT”) during the impugned periods 2008-09 to 2016-17 in terms of Section 3(1A) of 1957 Act. The said proposal, vide order dated 25.06.2016 (Exhibit P3), was confirmed in respect of various periods. The appellant-State defended the imposition of levy which was introduced w.e.f. 01.04.2008 owing to Finance Minister’s Budget Speech of 2008-09 assigning certain reasons. Learned Single Bench, after considering the respective arguments of the parties, allowed the writ petitions and directed the appellant-State to refund the taxes collected.

¶498

W.A.1923/18 & con. cases

¶499

¶500

Mr. Rafiq, learned counsel representing the appellant-State

¶501

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

¶502

301 to 304 of the Constitution of India and the explanation attached

¶503

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:-

¶504

i) Dealer is a national or multinational company, and ii) It functions as retail chain or direct marketing chain in the State of Kerala; and

¶505

iii) It imports not less than 50% of its stock from outside the State of Kerala or country; and

¶506

iv) 75% of its sale are retail business; and

¶507

v) Its total turnover exceeds five crores per annum.”

¶508

The explanation attached to Section 3(1A) elucidates what

¶509

big retail chains and ‘Direct Retail Chains and Retail Business mean for the purpose of applicability of the provisions of the Act.

¶510

W.A.1923/18 & con. cases

¶511

¶512

Section 304(a) do not denude the local State Government from imposition of levies de hors the provisions of Article 301 of the Constitution of India.

¶513

By imposing the levy, there is no discrimination amongst the class of dealers, who were importing more than 50% of the goods sold by it as it is permissible in law. Both the counsel relied upon the Nine Judges Bench of the Hon’ble Supreme Court in Jindal Stainless Steel Ltd. & Anr. Versus State of Haryana & Ors, reported at 2016 VOL. 66 SC-CB, wherein two landmark judgments of the Hon’ble Supreme Court in Shree Mahavir Oil Mills and Anr. Versus State of Jammu and Kashmir and Ors., (1996) 2 SCC 39 and Video Electronics Versus State of Punjab, (1990) 3 SCC 87 were discussed.

¶514

Learned counsel for the appellant submitted that in Video Electronics’s case (supra), notifications issued by the States of U.P. and Punjab providing exemption from payment of sales tax to new units established in certain areas of the said States for a period of three to seven years were assailed being discriminatory and violative of Article 301 read with Article 304(a) of the Constitution, inasmuch as it resulted in payment

¶515

W.A.1923/18 & con. cases

¶516

¶517

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.

¶518

In Mahavir Oil ( supra ), the State granted exemption from payment of

¶519

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.

¶520

Many writ petitions challenging the validity of the amendment incorporating the different legislations were pending adjudication and for purpose of adjudication, Hon’ble Supreme Court framed the following questions:-

¶521

W.A.1923/18 & con. cases

¶522

¶523

Can the levy of a non-discriminatory tax per se constitute infraction of Article 301 of the Constitution of India?

¶524

f answer to question No.1 is in the affirmative, can a tax which is compensatory in nature also fall foul of Article 301 of the Constitution of India?

¶525

What are the tests for determining whether the tax or levy is compensatory in nature?

¶526

Is the Entry Tax levied by the States in the present batch of cases violative of Article 301 of the Constitution and in particular have the impugned State enactments relating to entry tax to be tested with reference to both Articles 304(a) and 304(b) of the Constitution for determining their validity?

¶527

Parameters laid down in the judgment in support of the submissions

¶528

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

¶529

the judgment is read in its entirety, the pith and substance would reveal

¶530

that Legislature is not denuded to cause amendment for imposition of

¶531

W.A.1923/18 & con. cases

¶532

¶533

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.

¶534

Differentiation sought to be intended was to benefit a distinct class of industries for the purpose of increasing revenue and not for the welfare of an identified disadvantaged/backward section of the industry. Levy as a measure of tax was justified to augment revenue, being a policy matter and to promote small business establishments, encourage indigenous manufacturer based upon the policy decision and within the legislative competence of the State, the Courts should refrain from adjudicating its validity. In other words, the courts cannot determine the relevance or necessity of such policy.

¶535

Impugned levy does not violate Article 301 and in any case, the said provision stands on its own and need not conform to Article 304(a), there is no violation of the right to carry out trade, commerce and intercourse freely throughout the country. The power of the State of Kerala to impose

¶536

W.A.1923/18 & con. cases

¶537

¶538

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.

¶539

The impugned levy is not a tax on goods, but an additional sales tax based on turnover, within the prescribed limit and also cumulatively satisfy other conditions. The findings of the learned Single Judge by referring to the dealers, who are having a turnover of 5 crores and above but not importing the goods is neither here nor there. It is in the competence of a Legislation to stipulate different rate of tax, which does not fall foul of Article 301. It is possible to have such differential rates for boosting economic reserves as well. In support of the aforementioned contentions, reference was made to the following case law:-

¶540

a) Digvijay Cement Co. Versus State of Rajasthan, AIR 1997

¶541

SC 2609, a judgment of the Hon’ble Supreme Court between the

¶542

W.A.1923/18 & con. cases

¶543

¶544

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;

¶545

b) M/s. S. Kodar Versus State of Kerala, 1974 4 SCC 422 where

¶546

the State having exercised a wider power in the domain of taxation by

¶547

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;

¶548

c) G anga Sugar Corporation Ltd. Versus State of Uttar

¶549

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;

¶550

d) E ast India Tobacco Company Versus State of Andhra

¶551

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

¶552

The aforementioned judgment was rendered by relying upon the

¶553

W.A.1923/18 & con. cases

¶554

¶555

decision in case of Kunnathat Thathunni Moopil Nair Versus The

¶556

State of Kerala , AIR 1961 SC 552;

¶557

e) In R.K.Garg Versus Union of India, 1981 (4) SCC 675, it was

¶558

held that classification should not be arbitrary, but rational;

¶559

f) Elel Hotels and Investments Limited Versus Union of India,

¶560

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.

¶561

g) Shree Digvijay Cement Co. Ltd and Others vs. State of

¶562

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

¶563

W.A.1923/18 & con. cases

¶564

¶565

Article 301 of the Constitution.

¶566

h) State of Kerala vs. Fr.William Fernandez [2018 (1) KLT SN

¶567

48, the Nine Judge Constitution Bench after answering several

¶568

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.

¶569

i) Spences Hotel Pvt. Ltd and Another vs. State of West Bengal

¶570

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.

¶571

Levy was based upon “intelligible differentia” as it was on a particular big chain and for which the legislature has vide multitude for fiscal adjustment and therefore the classification so arrived cannot be violative of Article 14 of the Constitution of India.

¶572

W.A.1923/18 & con. cases

¶573

¶574

Very eloquently Mr.Rafiq laid emphasis on para 8 and 9 of the majority view in Jindal Stainless Steel Ltd. (supra) that any benefit granted to specified class of dealers cannot be said to be hostile discrimination. It is only the taxes discriminatory in nature, are, prohibited. States are well within the right of designing their fiscal legislations to ensure that the tax burden on goods imported from other states and goods produced within the state fall equally.

¶575

Per contra, Mr.G.Sivadas, learned Senior Counsel assisted by Sri.Shaji Thomas and Mr.Sonal Singh Beghel, and Mr.A.Kumar, representing the respondents refuted the submissions of the learned counsel for the appellant by submitting that on a bare reading of Section 3(1A) of 1957 Act, it is only a national or a multinational company with total turnover of five crores rupees per annum, which is functioning in the State of Kerala as a retail chain or direct marketing chain with seventyfive percent (75%) of its sale through retail business, is rendered, liable to pay the surcharge 'only' if 50% of the goods sold by it are imported into the State by way of inter-state purchases or stock transfers (emphasis

¶576

W.A.1923/18 & con. cases

¶577

¶578

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.

¶579

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

¶580

W.A.1923/18 & con. cases

¶581

¶582

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.

¶583

1.b) Vikram Cement and Another v. State of Madhya

¶584

Pradesh and Others (2015) 11 SCC 708, where the appellants

¶585

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

¶586

W.A.1923/18 & con. cases

¶587

¶588

held, to be discriminatory in nature.

¶589

1.c) Union of India and Others v. N.S. Rethnam and Sons

¶590

(2015) 10 SCC 681, where two notifications pertaining to same

¶591

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.

¶592

1.d) H.Anraj v. Government of Tamil Nadu (1986) 1 SCC 414. para 38.

¶593

1.e) The State of Rajasthan and Another v. M/s.Ghasiram

¶594

Mangilal Etc. 1969(2) SCC 710. where after noticing the challenge

¶595

laid to the exemption from payment of tax on sale of Bardana, (old,

¶596

new or being received as container) except on the first point in the

¶597

series of sale in the State, the Hon'ble Supreme Court found that it

¶598

W.A.1923/18 & con. cases

¶599

¶600

was altogether unnecessary to go into the question of applicability of Articles 301 and 304 (a) as there was no such discrimination between

¶601

the goods so imported and the goods which were manufactured or produced in the State.

¶602

1.f) State of Uttar Pradesh and Others v. Deepak Fertilizers &

¶603

Petrochemical Corporation Ltd. (2007) 10 SCC 342

¶604

1.g) Aashirwad Films v. Union of India and Others (2007) 6

¶605

SCC 624.

¶606

Article 301 read with Article 304(a) of the Constitution of India if read in conjunction, the imposition of levy runs contrary to the principles of equality enunciated in Article 14 and rightly so, declared unconstitutional by the learned Single Bench. Article 301 to 307 of the Constitution were introduced to ensure that inter-state/intra-state barriers, both economic and political, are minimized.

¶607

It is by now a settled law that the surcharge is in the nature of tax and that being so, levy of surcharge is not only violative of Article 301, but unconstitutional, unless similar levy of surcharge is also imposed on goods manufactured or produced in the State of Kerala. Section 3(1A)

¶608

W.A.1923/18 & con. cases

¶609

¶610

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.

¶611

W.A.1923/18 & con. cases

¶612

¶613

The findings in Jindal Stainless (supra) in para 72 leave no manner of doubt that exemptions and incentives, though permissible but only with a restriction that it is based on “reasonable classification” and “intelligible differentia” or “for a limited period”, but in case differentiation is made out by the State with an intention to create an favourable bias and intended to benefit a distinct class of industries, it would definitely amount to discrimination under Article 304(a) and 14 of the Constitution of India.

¶614

The differentiation brought out by the Legislation clearly reflects intention to benefit a distinct class of industry, which is not for the welfare of an identified disadvantaged/backward section of the industry, but only with an intention to increase the revenue. All the persons equally placed, i.e., companies having a specified annual turnover without creation of any distinction on the basis of any procurement, rightly held to be failing the test of discrimination propounded by the Hon’ble Supreme Court and held to be unconstitutional. It attempted to favour `small retailers’ over

¶615

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

¶616

W.A.1923/18 & con. cases

¶617

¶618

Kerala. In other words, the intention was favourable towards small retailers and not producers or manufacturers.

¶619

The contention of the appellant-State is totally contrary to the stand taken in the counter reply and the submissions made before this Court. Even if levy has been considered, for the sake of argument though not admitting, a welfare measure, it was imperative for the State, to furnish “empirical data” in support of the reasoning, in view of the law laid down by the Hon’ble Supreme Court in Pasa Associates Pvt. Ltd. Versus State of Chattisgarh & Ors., (2015) 85 VST 439. It is justifiable in extending benefit for a “limited period”, but the plain and simple language without any specific time line, the Legislation cannot withstand the test of any classification or intelligible differentia, but created a discrimination and that too, for an indefinite period.

¶620

All the judgments cited on behalf of appellant relate to a period prior to the decision of the larger bench in Jindal Steel (supra), and in none of the cases relied upon, the Supreme Court had shown any deviation from the twin test relied upon by the learned Single Judge in the impugned order while holding the levy to be violative of Article 14 of the

¶621

W.A.1923/18 & con. cases

¶622

¶623

Constitution of India.

¶624

Having heard the learned counsel for the parties, the judgments cited as well as the findings of the learned single Judge, we are of the view that there is no substance and force in the argument of Mr.Rafiq. Before addressing the reasoning on the arguments, it would be relevant to quote the provisions of Articles 301 to 304 of the Constitution of India.

¶625

“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 .

¶626

Power of Parliament to impose restrictions on trade, commerce and intercourse Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.

¶627

Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce

¶628

(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

¶629

W.A.1923/18 & con. cases

¶630

¶631

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.

¶632

Restrictions on trade, commerce and intercourse among States Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law.

¶633

(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

¶634

(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.”

¶635

The majority view after discussing the entire case law culled

¶636

out the following principles:

¶637

1. Taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India. The word 'Free' used in Article 301 does not mean “free from taxation”.

¶638

1. Only such taxes as are discriminatory in nature are prohibited

¶639

W.A.1923/18 & con. cases

¶640

¶641

by Article 304(a). It follows that levy of a nondiscriminatory tax would not constitute an infraction of Article 301.

¶642

1. Clauses (a) and (b) of Article 304 have to be rad disjunctively.

¶643

1. A levy that violates 304(a) cannot be saved even if the procedure under Article 304(b) or the proviso thereunder is satisfied.

¶644

1. The compensatory tax theory evolved in Automobile Transport case and subsequently modified in Jindal's case has no juristic basis and is therefore rejected.

¶645

1. Decisions of this Court in Atiabari, Automobile Transport and Jindal cases (supra) and all other judgments that follow these pronouncements are to the extent of such reliance over ruled.

¶646

1. A tax on entry of goods into a local area for use, sale or consumption therein is permissible although similar goods are not produced within the taxing state.

¶647

1. Article 304(a) frowns upon discrimination (of hostile nature in the protectionist sense) and not on mere differentiation. Therefore, incentives, set-offs etc. granted to a specified class of dealers for a limited period of time in a non-hostile fashion with a view to developing economically backward areas would not violate Article 304(a). The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

¶648

1. States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

¶649

1. The questions whether the entire State can be notified

¶650

W.A.1923/18 & con. cases

¶651

¶652

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.

¶653

The major thrust of the argument of Mr.Rafiq was that once the learned single Judge did not agree with the argument that the amendment do not cause any bias it cannot be said to be discriminatory or based on any unintelligible differentia, we are afraid that the aforementioned argument is not able to cut ice. Out of the questions framed by the Supreme Court in Jindal Stainless Steel (supra), question No.4 would only be relevant for adjudication of the lis. This adjudication commenced from para 129 onwards reproduced by Single Judge.

¶654

Respondents were aggrieved of the imposition of levy as import was not less than 50% of the stock from outside the state and not less than 75% of sales retail business and the turn over of 5 crores. The respondents and the purchaser similarly placed, levy, was charged for infinite period only on the goods brought into the State from the neighbouring states in case the conditions, aforementioned, are met with. Such imposition of levy as per the finding of the Nine Judges Bench would definitely amount to hostile discrimination and not based on

¶655

W.A.1923/18 & con. cases

¶656

¶657

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.

¶658

State has not been able to justify that the amendment in the Act was for a limited period and would equally apply to local retailers viz-aviz the respondents. On perusal of principle Nos.8 and 9, it is discerned that incentive of set off granted to a specified class of dealers for a limited period cannot amount to hostile discrimination or violative of Article 304 (a).

¶659

In fact surcharge under section 3(1A) of the 1997 Act is hit by the stipulation under Article 304(a) in as much as it is levied on dealers importing goods from outside the State whereas there is no similar levy on dealers engaged in locally manufactured/procured goods. In the case of Video Electronics (supra), the notification issued by the State of U.P. and Panjab granting exemption from payment of sales tax, to new units established in certain area of the State for a “restricted period” was held to be not discriminatory. In Mahavir Oil (supra), exemption in favour of local producers from payment of tax was held to be constitutionally

¶660

W.A.1923/18 & con. cases

¶661

¶662

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

¶663

extra sales tax.

¶664

In following paras of Jindal Stainless Steel (supra), the Honble Supreme Court agreed with the line of reasons adopted in Video Electronics (supra) in the following words:

¶665

“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:

¶666

“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

¶667

W.A.1923/18 & con. cases

¶668

¶669

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. . . . .”

¶670

Fazl Ali J. in his concurring judgment explained the concept in the following words:

¶671

“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

¶672

W.A.1923/18 & con. cases

¶673

¶674

circumstances. The main objection to the West Bengal Act was that it permitted discrimination “without reason” or without any rational basis.”

¶675

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

¶676

W.A.1923/18 & con. cases

¶677

¶678

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.

¶679

W.A.1923/18 & con. cases

¶680

¶681

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.”

¶682

There would have been force in the argument of Mr.Rafiq if the intention behind levy of sur-charge was to equalise the fall of fiscal burden on the goods from within the State and those from outside the State. Obviously, such exemption or set off will not amount to hostile discrimination and offensive of Article 304(a). The judgments cited are prior to the judgment Jindal Stainless (supra) which is the magna carta on the applicability of Articles 301 to 304(a).

¶683

No doubt, the power to grant exemption is sovereign to levy taxes which cannot be taken away from the State competent to impose taxes and duties but become septal foundation on which such exemptions and intentions have been held to be permissible in Video Electronics case so long as it is based upon a reasonable classification; but not in case when differentiation is made by the State without reasonable classification or intention to create favourable bias. The finding of the Single Judge in not accepting the contention of respondents qua imposition of surcharge to be

¶684

W.A.1923/18 & con. cases

¶685

¶686

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.

¶687

The whole doctrine of classification is based upon the distinction and on a well known fact that the circumstances which govern one set of the persons and objects may not necessarily be the same governing the other set of persons. The expression discrimination has not been defined in the Constitution though the same has fallen for interpretation by the Supreme Court in Kathi Raning Rawat vs. State of Saurashtra AIR 1952 SC 123 where the 7-Judge Bench held that all the legislative differentiation is not necessarily discriminatory. The 9 (nine) Judges Bench of Supreme Court has clearly held that if the levy is for a limited period, it cannot be said to be discriminatory, if otherwise would be act of hostile discrimination as has been decided by the learned single Judge. We do not find any illegality or perversity in the order of the learned single Judge to form a different opinion than the one held.

¶688

W.A.1923/18 & con. cases

¶689

¶690