Kerala High Court
M/S. Comfy Shoemakers Pvt. Ltd vs State Of Kerala on 23 July, 2025
W.P.(C.) No. 17656 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
WP(C) NO. 17656 OF 2018
PETITIONER:
M/S. COMFY SHOEMAKERS PVT. LTD.
CENTRE SQUIRE, 6284-SHOP NO.106, FIRST FLOOR, MG
ROAD, ERNAKULAM, REPRESENTED BY ITS GENERAL MANAGER,
MR. NAHAS KHAN.
BY ADVS.
SHRI.A.KUMAR (SR.)
SHRI.P.J.ANILKUMAR
SMTG.MINI(1748)
SRI.P.S.SREE PRASAD
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 THE COMMISSIONER
STATE GOODS AND SERVICES TAX DEPARTMENT,
THIRUVANANTHAPURAM-695001.
3 THE COMMERCIAL TAX OFFICER
COMMERCIAL TAXES, 2ND CIRCLE, ERNAKULAM-682016.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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HARISANKAR V. MENON, J
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W.P.(C.) No. 17656 of 2018
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Dated this the 23rd day of July, 2025
JUDGMENT
The petitioner, an assessee under the provisions of the
Kerala Value Added Tax Act, 2003, has filed the captioned writ
petition seeking the following reliefs: –
“A. Declare that Section 3 (1A) together with Explanation
1 and 2 thereof, of the Kerala Surcharge on Taxes Act
1957, are arbitrary and discriminatory and violative of
Articles 14, 19, 265, 301 and 304(a) of the
Constitution of India and hence invalid and
unenforceable.
B. Declare that no surcharge under the Kerala Surcharge
on Taxes Act 1957 (11 of 1957) under Sections 3 (IA)
and (IAA) can be levied or collected w.e.f. 01.07.2017
on the introduction of Kerala GST Act, 2017.
Consequent to the omission of the Sections 3 (IA) and
(IAA) of the Kerala Surcharge on Taxes Act 1957 under
Section 173(i) of the Kerala GST Act, 2017
consecutively renders all proceedings for levy,
assessment and collection of tax under the Kerala
Surcharge on Taxes Act 1957 void and of no effect.
C. Declare that clauses (a), (b, (c), (d) and (e) of Sub
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Section 2 of Section 174 of the Kerala State Goods and
Services Act 2017 (Act 20 of 2017) is illegal and ultra
vires Article 246A of the Constitution of India, Section
19 of the Constitution (One Hundred and First
Amendment) Act, 2016 and the Kerala State Goods and
Services Act 2017 (Act 20 of 2017) and is accordingly
to be rendered void and un-enforceable.
D. Declare that sub-section 3 of section 174 of the Kerala
State Goods and Services Act 2017 (Act 20 of 2017) in
so far as it provides for application of Section 4 of the
Interpretation and General Clauses Act 1125 (Act VII of
1125) providing for saving of the Kerala Value Added
Tax Act 2003 and with regard to the effect of the repeal
of the statutes specified in Section 174 (1) (i) is illegal,
ultra vires Article 246A of the Constitution of India and
Section 19 of the Constitution (One Hundred and First
Amendment) Act, 2016 and also beyond the scope and
scheme of the Kerala State Goods and Services Act
2017 (Act 20 of 2017) and is therefore to be rendered
void and un-enforceable.
E. Issue a Writ Certiorari or such other appropriate Writ
Order or direction quashing Exhibit-P1 to P3
assessment orders passed by the 3rd Respondent.
F. Declare that the authorities under the Taxes
Department of the State of Kerala have no jurisdiction
or powers to levy, assess and collect tax under the
Kerala Value Added Tax Act, 2003 (Act 30 of 2004)
enacted under Entry 54 of the State list of the 7th
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Schedule to the Constitution as it stood prior to
substitution on 16.09.16 by the Constitution (One
Hundred and First Amendment) Act, 2016 and /or also
consequent to the introduction of the Kerala State
Goods and Services Act 2017 (Act 20 of 2017).”
2. Heard A.Kumar, Senior Counsel, assisted by Smt. Mini,
learned counsel for the petitioner, and Sri. V.K.Shamsudheen,
the learned Senior Government Pleader. As regards the
challenge with respect to the 101 st Amendment to the
Constitution, the petitioner fairly points out that the issue has
already been decided against it by judgment of the Division
Bench of this Court in Sheen Golden Jewels India Pvt. Ltd.
v. State Tax Officer [2022 (6) KLT OnLine 1090].
3. However, as regards the demand of surcharge with
reference to the provisions of Section 3 (1A) and (1AA) of the
Kerala Surcharge on Taxes Act, 1957, both sides point out that
the issue is already considered and decided in favour of the
assessee by virtue of judgment of this Court in State of Kerala
and Others v. Aditya Birla Nuvo Ltd. and Others [2020
76 GSTR 536].
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4. The learned Government Pleader submits that an
appeal is preferred, and the said appeal is pending
consideration before the Apex Court. However, it is fairly
pointed out that no stay is granted by the Apex Court as
regards the operation of the judgment of this Court.
In such circumstances, while rejecting the challenge
against the proceedings on the basis of the 101 st Amendment to
the Constitution, I allow this writ petition by setting aside
Exts.P1 to P3 orders to the extent of the demand on the basis of
the Kerala Surcharge on Taxes Act, 1957, in the light of the
afore judgment.
Sd/-
HARISANKAR V. MENON,
JUDGE
sjb/23.07.2025
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APPENDIX OF WP(C) 17656/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SURCHARGE ASSESSMENT
ORDER DATED 14.03.18 FOR THE ASSESSMENT
YEAR 2015-16.
EXHIBIT P2 TRUE COPY OF THE SURCHARGE ASSESSMENT
ORDER DATED 14.03.18 FOR THE ASSESSMENT
YEAR 2016-17.
EXHIBIT P3 TRUE COPY OF THE SURCHARGE ASSESSMENT
ORDER DATED 14.03.18 FOR THE ASSESSMENT
YEAR 2017-18.