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1 - 3 of 3 (0.23 seconds)State Of Kerala And Others vs Fr.William Fernandez Etc Etc on 9 October, 2017
5. Learned Senior Counsel for the petitioner has urged that no satisfaction
has been recorded by the prescribed authority showing reasonable grounds to
believe that the Assesee or any other person other than the registered person has
wilfully failed to apply for registration, though being liable to pay taxes and
thus, is required to be proceeded under Section 11(5) for assessment of tax,
penalty and interest as well. The requirement of alleging specific acts of wilful
violation on the part of the petitioner is completely lacking in the show-cause
notice dated 10.05.2019. For the period up to 22.03.2017 i.e. the date of the
judgment of the Apex Court in Civil Appeal No. 8275/2012, the Act of 2011
was not on the statute book as having been held as ultra vires the constitutional
provision. The initiation of proceedings therefore suffers from erroneous
assumption of jurisdiction which goes to the root of the matter and is amenable
to the writ jurisdiction as is also held in the recent judgment of the Apex Court
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in the case of Magadh Sugar & Energy Ltd. Versus State of Bihar and
Others [2021 SCC OnLine SC 801, Para- 25 to 29]
ii. The proceedings initiated under show-cause notice dated 10.05.2019
which is common in all the writ petitions covering different Assessment
Orders, is barred by limitation in view of proviso to Sub Section (5) of Section
11 of the Act being after expiry of two years from the period to which it relates
reckoning the starting period of limitation from the date of the judgment of the
Apex Court passed in Civil Appeal No. 8275/2012 i.e. 22.03.2017.
Respondents in their counter affidavit have wrongly placed reliance on the date
of starting of limitation period as 09.10.2017 relying upon the judgment of the
Apex Court in the case of State of Kerala and others versus Fr. William
Fernandez Etc. [2017 SCC OnLine SC 1291]. Learned Senior Counsel for
the petitioner has referred to paragraph 30 and 33 in the case of Fr. William
Fernandez Etc. (Supra) dealing with the Civil Appeals of the State of Bihar
and State of Jharkhand and concerning the Bihar Tax on Entry of Goods under
the Local Areas Act, 1993. According to the petitioner, the said judgment has
no application to an assessment proceeding under the Act of 2011. To make the
things more clear, learned senior counsel for the petitioner has also referred to
the explanation to the definition clause of 'Importer' under section 2(h)(i)
which reads as under.
Article 226 in Constitution of India [Constitution]
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