HYCOUNT MARKETING DIVISION v. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES DEPARTMENT, MATTANCHERRY AT ALUVA; THE COMMERCIAL TAX OFFICER - III, COMMERCIAL TAXES DEPARTMENT, ALUVA; DEPUTY COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY; INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY, KOCHI; TAHSILDAR, TALUK OFFICE, ALUVA; ADDITIONAL R6 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT (IMPLEADED)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** ## **WP(C).No. 5477 of 2016 (H)** **---------------------------------------** ## **PETITIONER(S) :** **-------------------------** **HYCOUNT MARKETING DIVISION, B.NO.127, TEMPLE ROAD, ALWAYE - 683 101, REPRESENTED BY ITS MANAGING PARTNER, HINSAF M.H.** **BY DR.K.B.MUHAMED KUTTY (SENIOR ADVOCATE) ADVS. SRI.K.M.FIROZ** **SMT.M.SHAJNA SRI.S.KANNAN SMT.UMMUL FIDA** ## **RESPONDENT(S) :** - **----------------------------** **1. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES DEPARTMENT, MATTANCHERRY AT ALUVA - 683 101.** **2. THE COMMERCIAL TAX OFFICER - III, COMMERCIAL TAXE DEPARTMENT, ALUVA - 683 101.** **3. DEPUTY COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY - 682 002.** **4. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY, KOCHI - 2.** **5. TAHSILDAR, TALUK OFFICE, ALUVA - 683 101.** ## *** ADDITIONAL R6 IMPLEADED** **6. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 24.02.2016 IN I.A.NO. 2319 OF 2016** **BY GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 5477 of 2016 (H) ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE ASSESSMENT ORDER DATED 02-11-2011 FOR THE YEAR 2009-10 ALONG WITH DEMAND NOTICE PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 27-02-2012 IN W.P(C).NO. 3786 OF 2012 PASSED BY THE HONOURABLE HIGH COURT OF KERALA.** - **EXHIBIT P3: A TRUE COPY OF THE ASSESSMENT ORDER DATED 10-10-2012 FOR THE YEAR 2009-10 PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P4: A TRUE COPY OF THE JUDGMENT DATED 07-12-2012 IN W.P(C).NO. 27964 OF 2012 PASSED BY THE HONOURABLE HIGH COURT OF KERALA.** - **EXHIBIT P5: A TRUE COPY OF THE PROPOSAL NOTICE DATED 10-03-2015 ISSUED BY THE 3RD RESPONDENT FOR EXTENSION OF TIME.** - **EXHIBIT P6: A TRUE COPY OF THE OBJECTION DATED 17-03-2015 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P7: A TRUE COPY OF THE ORDER DATED 30-06-2015 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P8: A TRUE COPY OF THE NOTICE DATED 17-08-2015 UNDER SECTION 25(1) OF THE KVAT ACT.** - **EXHIBIT P9: A TRUE COPY OF THE OBJECTION DATED 09-09-2015 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P10: A TRUE COPY OF THE ASSESSMENT ORDER DATED 15-09-2015 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P11: A TRUE COPY OF THE RECTIFIED ORDER DATED 04-12-2015 PASSED BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** **//TRUE COPY//** Msd. **NIL** **P.A.TO JUDGE.** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 5477 of 2016 (H) -----------------------------------------Dated: 22[nd] February, 2017 ## **J U D G M E N T** The petitioner has two contentions; one with respect to limitation and the other with respect to merits of the assessment passed under Ext.P11 order. 2. The contention of limitation has to be first dealt with and only then need this Court look into the further contention raised, which, in any event, could be raised in an appeal; especially since the question urged is a mixed question of fact and law. Suffice it to notice that the question arises on merits as to whether the amounts received the assessee as by marketing expenses, from its sister concerns could be included in the purchase turnover and proportionate addition made to its sales turnover. The Assessing Officer has taken a ## **W.P.(C) No. 5477/2016** **-2-** view that the said amount is assessable, since the marketing expenses, are to be included in the purchase price and if that be so, the price at which the petitioner sold the goods is less than the purchase price. 3. The writ petition was admitted on the ground of limitation. The assessment is of the year 2009-2010 and going by the Full Bench decision of this Court in **Cholayil Private Limited v. Assistant Commissioner (Assessment) - 2015 (4) KLT 516 (F.B.)** , the only mandate under Section 25 of the Kerala Value Added Tax Act, 2003 ('KVAT Act' for short) is that the proceedings should be initiated before the limitation period. 4. The learned Senior Counsel appearing for the respondent would point to Ext.P5 to contend that the Deputy Commissioner had extended the period of limitation, on a request made by the Assessing Officer ## **W.P.(C) No. 5477/2016** **-3-** on 03.03.2015. The extension granted by the Deputy Commissioner, by Ext.P5, for concluding the proceedings, would not affect the limitation as provided in Section 25 of the KVAT Act; which period is prescribed for initiation of the reopening and not conclusion; is the argument. 5. To understand the point of initiation of proceedings, one has to look at the various proceedings with respect to the aforesaid assessment year. The original assessment in respect of the dealer was completed on 02.11.2011. The assessee filed a rectification petition seeking the excess input tax to be first deducted from the refund available to the petitioner. Since no such deduction was made in the order passed on 02.11.2011, as is produced at Ext.P1, the assessee was also before this Court with a writ petition. The rectification application was directed to ## **W.P.(C) No. 5477/2016** **-4-** be considered by Ext.P2 judgment. A notice was further issued on 11.04.2012 and an assessment order passed at Ext.P3, wherein the difference between the purchase value and sale value was noticed and an assessment made of the turnover so determined by the Assessing Officer. 6. Again, the petitioner was before this Court with a writ petition contending that the specific question directed to be considered in the rectification application was not dealt with. This Court, hence, directed a fresh consideration as per Ext.P7. It is in that context that the Assessing Officer approached the Deputy Commissioner seeking for an extension apprehending that the limitation would work against the assessment being completed after the period provided under Section 25 of the KVAT Act. This was also on a misapprehension that the limitation is with ## **W.P.(C) No. 5477/2016** **-5-** respect to conclusion of proceedings; which popular belief was set at rest by the Full Bench decision. 7. The Full Bench held that what is intended by the limitation provided under Section 25 of the KVAT Act is only that a reopening of the assessment has to be initiated within five years, as provided therein. The subject assessment year being 2009-2010, the assessment had to be reopened before 31.03.2015. The assessment was, in fact, completed in 2011 and there was a rectification petition filed, wherein there was a remand made. 8. While considering the remand, fresh proposals were issued by office notice dated 11.04.2012, on which Ext.P3 order was passed. Ext.P3 was set aside by this Court under Article 226 of the Constitution of India and a fresh consideration directed. In such circumstance, it cannot be said that the limitation stood against the ## **W.P.(C) No. 5477/2016** **-6-** department, in the instant case, since the reopening was done within the limitation period. The conclusion of assessment was not made within the limitation period which is not a mandate, even going by Section 25 of the KVAT Act. The further proceedings were necessitated only because of the challenge taken against the orders of assessment made on reopening. 9. The Assessing Officer then passed Ext.P7 refund order in accordance with the rectification application and, again, issued notice under Ext.P8, which, merely reiterated the proposals as confirmed in the earlier assessment order at Ext.P3. The Assessing Officer then passed Ext.P10 order and for completeness, Exts.P7 and P10 were both incorporated in Ext.P11. Hence, the assessment reopened in 2012 was concluded by Ext.P11 dated 04.12.2015. There can be no ground of limitation raised against the order. **W.P.(C) No. 5477/2016** **-7-** 10. On such reasoning, the ground raised on limitation is negatived. The petitioner would be granted liberty to file appeal from Ext.P11 order. Ext.P11 is dated 04.12.2015. The writ petition was filed on 18.01.2016. Hence, the period when the above writ petition was pending before this Court need not be computed for the purpose of delay. If the petitioner files appeal within one month from the date of receipt of the certified copy of the judgment, the appeal shall be considered on merits without any reference to the aspect of delay. The writ petition is disposed off without any observation on the merits of the assessment. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 23/2/17