Kerala High Court
Tissan J.Thachankary vs The State Of Kerala
Author: Manjula Chellur
Bench: Manjula Chellur, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935
WA.No. 4 of 2013
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AGAINST THE JUDGMENT DATED 28-03-2012 IN WP(C).NO. 33392/2009.
......
APPELLANT/PETITIONER:
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TISSAN J.THACHANKARY,
CHAIRMAN, FORT MUNNAR HOTEL,
CHINNAKANAL, IDUKKI.
BY ADVS.SRI.LAL K.JOSEPH,
SRI.A.A.ZIYAD RAHMAN,
SRI.V.S.SHIRAZ BAVA.
RESPONDENTS/RESPONDENTS:
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO
COMMERCIAL TAXES DEPARTMENT,
THIRUVANANTHAPURAM-695 101.
2. THE COMMISSIONER OF COMMERCIAL TAXES,
THIRUVANANTHAPURAM-695 101.
3. THE DEPUTY COMMISSIONER (APPEAL),
COMMERCIAL TAXES DEPARTMENT,
ERNAKULAM-682 018.
4. THE COMMERCIAL TAX OFFICER (WC & LT),
COMMERCIAL TAX DEPARTMENT, IDUKKI,
KATTAPPANA-685 508.
5. THE INSPECTING ASSISTANT COMMISSIONER,
COMMERCIAL TAXES DEPARTMENT,
KATTAPPANA SOUTH P.O., IDUKKI DISTRICT-685 515.
BY GOVT. PLEADER MR.BOBBY JOHN PULICKAPARAMBIL.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2013,
ALONG WITH W.A. NO. 520 OF 2013, THE COURT ON 26/02/2014
DELIVERED THE FOLLOWING:
rs.
MANJULA CHELLUR, C.J.
&
A.M.SHAFFIQUE, J.
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W.A. Nos. 4 of 2013
&
520 of 2013
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Dated this the 26th February, 2014
JUDGMENT
Shaffique, J.
Since the appellant is common in both cases and the issue involved is similar, with reference to different assessment years they are decided together.
2. In W.A. No. 4/2013 the petitioner in the writ petition is the appellant. The writ petition is filed seeking to quash Exts. P2, P3 and P5 and for a declaration that the services rendered out side the hotel building are not liable to be taxed under the provisions of the Kerala Tax on Luxuries Act, 1976 (hereinafter referred as 'the Act').
3. Ext.P2 is the proceedings of the Commissioner of Commercial Taxes by which suo motu revision was taken under S. 8(1) of the Act. Ext.P3 is the assessment order W.A. Nos. 4 of 2013 & 520 of 2013 2 issued pursuant to Ext.P2 and Ext. P5 is the notice of demand for an amount of Rs. 4,09,876/-. This relates to assessment year 2002-2003.
4. The main contention urged by the learned counsel for petitioner was regarding limitation in exercising power under S. 6(5) of the Act. It was contended that the assessment in respect of the assessment year 2002-2003 was reopened by invoking S. 8(1) of the Act suo motu by the revisional authority and the re-assessment is made. The learned Single Judge formed an opinion that since there is no provision or time-frame to suo motu revise the order of assessment by the revisional authority under S. 8(1) of the Act, S. 6(5) which provides for limitation will not apply to such proceedings. However it was observed that since an appeal was pending before the appellate authority, the petitioner could avail of the statutory remedy. W.A. Nos. 4 of 2013 & 520 of 2013 3
5. It is submitted by the learned counsel for appellant that the appeal has been decided against the appellant. But it is argued that if the question of limitation is decided in favour of the appellant, and if it is found that the very invocation of suo motu revision by the revisional authority was beyond the period of limitation, the order passed by the appellate authority under the Act, during the pendency of appeal will be subject to the decision taken in this case.
6. It is contended that though no specific period of limitation is prescribed under S. 8(1) of the Act, when the period of limitation is specified for re-assessment by the assessing officer under S. 6(5) of the Act, the limitation applicable for re-assessment shall automatically apply for exercising the power of suo motu revision. The learned counsel also placed reliance on the judgment of a Division Bench of this court in Suppan Chettiar v. CAIT (1958 KHC 374). In that case, the question to be considered W.A. Nos. 4 of 2013 & 520 of 2013 4 was whether the revisional authority under S. 34 of the Agricultural Income Act, 1950 (TC) can exercise the power of revision beyond the period of limitation specified for reopening an assessment as provided under S.35 of the Act. It was held that though no specific period of limitation was prescribed for exercising the suo motu power of revision under S. 34 of the Act, and when an assessment becomes final within a specified period, the revisional authority cannot direct the assessing officer to do anything which the latter is not competent to do so on account of the statutory limitation provided under the Act.
7. On the other hand, the learned Special Government Pleader relies upon S. 8(1) of the Act to indicate that when there is no statutory period of limitation prescribed for exercising the suo motu power of revision, the revisional authority can at any point of time direct re- opening of the assessment and the re-assessment can W.A. Nos. 4 of 2013 & 520 of 2013 5 be made without reference to the period specified under S.6(5) of the Act.
8. Having heard the learned counsel for appellant, Sri.Ziyad Rahman and the Special Government Pleader Dr.Sebastian Chempapillil, the short issue to be considered in this appeal is whether there is any period of limitation for exercising the suo motu power of revision.
9. Section 8(1) and S.6(5) of the Act reads as under:
b