2018 Taxo.online 276

WP(C).No. 25972 of 2018 dated 07.08.2018

EARTHLINE SERVICES PRIVATE LIMITED

STATE OF KERALA

2018

GST

Central Goods & Services Tax Act, 2017

Section 174

Dama Seshadri Naidu, Justice

In favour of assessee

High Court

Kerala

Represented by: –

Petitioner: – Sri.Sukumar Nainan Oommen, Sri.Sherry Samuel Oommen & Sri.Rahul Ipe Prasad

Respondent: – Sri T.A.Unnikrishnan & Dr.Thushara James

Order: –

The petitioner, a Private Limited Company, is a dealer under Kerala Value Added Tax Act, 2003 (KVAT Act). Faced with the notice dated 02.06.2014 under Section 25(1) of the KVAT Act, it has filed this writ petition. It sought the following reliefs:

“i. Issue a writ of mandamus or any other appropriate writ, order or direction declaring Section 174(1)(i) of the Kerala State Goods and Services Tax Act, 2017 as being unconstitutional for contravention of Sections 17(b)(ii) and 19 of the Constitution (One Hundred and First Amendment) Act, 2016; and strike down the same.

1. Issue a writ of mandamus or any other appropriate writ, order or direction declaring Section 174(2) of the Kerala State Goods and Services Tax Act, 2017 as being unconstitutional for contravention of Sections 17(b)(ii) and 19 of the Constitution (One Hundred and First Amendment) Act, 2016; and strike down the same.

iii. Issue a writ of mandamus or any other appropriate writ, order or direction setting aside the impugned ‘Posting Notice’ in Exhibit P1.

1. Issue such other and further reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case;
2. Award costs to the petitioners”
3. A learned Division Bench of this Court in M/s. Cholayil Pvt. Ltd v. The Assistant Commissioner (Assessment)[1] has ruled on the question of limitation. Now, both the learned Counsel agree that the issue of limitation raised in this writ petition thus stands squarely answered—and in the petitioner’s favour, at that.
   3. Once a lis can be disposed of, and a grievance can be redressed, on the statutory adjudication, the other issues, especially involving constitutional validity, need not be addressed. The canon of constitutional avoidance is well established.

I therefore allow this writ petition, on the issue of limitation, applying the ratio of M/s. Cholayil Pvt. Ltd.