IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 34835 of 2007(V)
1. V.C.ALIKUNHI HAJI & SONS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DEPUTY COMMISSIONER,
3. ASST. COMMISSIONER,
4. KERALA SALES TAX APPELLATE TRIBUNAL,
For Petitioner :SRI.C.A.SADASIVAN
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/12/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) 34835 OF 2007
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Dated: December 3, 2007
JUDGMENT
The prayers sought for in this writ petition are for declaring that sec.17D of the
KGST Act to be unconstitutional and to set aside Exts.P4, P5 and P6 as illegal since the
same are against Ext.P3. It is also the prayer that the Appellate Tribunal should be
directed to admit the appeals without remitting any amount as required under sec.17D
(5).
2. In so far as this case is concerned, Exts.P4, P5 and P6 are the three
assessment orders issued for the years 2001-02, 2003-04 and 2004-05. By Ext.P11
circular dated 12.4.2007, all assessments under the KGST Act pending as on 1.4.2007
were ordered to be completed under the fast track method as envisaged in sec.17D of
the KGST Act. It is on that basis the assessments in question were contemplated under
sec.17D.
3. Sec.17D provides that notwithstanding anything contained in any other law
for the time being in force or in any other provisions of the KGST Act, assessments
pending under the Act as on the 1st day of April, 2007 be completed under the Fast
Track Method. Thus, the section begins with a non obstante clause. Therefore, even
if the assessment years in question are prior to the introduction of sec.17D, the fact that
Sec.17D was introduced only with effect from 1.4.2007 does not stand in the way of the
authorities under the Act including those assessment years also under Sec.17D of the
Act.
4. The complaint of the petitioner appears to be that sec.17D(5) provides that
no appeal under sec.17D shall lie to the Sales Tax Appellate Tribunal except in a case
WP(C) 34835/2007 Page numbers
where a dealer has paid the entire tax amount. This, according to the counsel, affects
the right of appeal itself and therefore is unconstitutional. I am not in a position to
accept this contention. As I have already held, sec.17D does not stand in the way of
the authorities under the Act for including those assessment years also under sec.17D
even if it is before 1.4.2007 when the section was introduced. The right of appeal is a
statutory right and therefore if a condition is imposed in the statute itself for availing of
the statutory right of appeal, there is nothing illegal in that. Even absence of a provision
for appeal by itself will not invalidate the statute. If that be so, the condition requiring
remittance of tax for entertaining the appeal, cannot be held to be invalid for any
reason. The petitioner has filed Exts.P8,P9 and P10 along with Appeals against
Exts.P4, P5 and P6 assessment Orders. These appeals are now pending before the 4th
respondent. Obviously in terms of Sec.17D(5) as the petitioner has not remitted the tax
that is found to be due in terms of the orders of assessment, these appeals are not
admitted. This also cannot be said to be in any manner irregular as there is an admitted
non compliance of Sec.17D(5).
5. The petitioner submits that amounts are due to be refundable for the years
1996-97, 1997-98 and 1998-99 and seeks adjustment of these amounts towards his
liability under Exts.P8, P9 and P10. The learned Government Pleader on instructions
submits that these are matters which are also pending before the Tribunal. If that be so,
the request for adjustment cannot be granted.
In the result the writ petition fails and it is dismissed.
ANTONY DOMINIC, JUDGE
mt/-
