2017 (3) TMI 339

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....ax Act, 2003 (for brevity 'the KVAT Act') and there can be no consideration of the issues raised in the writ petition, under Article 226 of the Constitution of India. 3. The learned Counsel for the petitioner however, based on State of H.P & Others v. Gujarat Ambuja Cements [2005 (6) SCC 499] contends that the assessment being not sanctioned by law could be set aside under Article 226 and there is no requirement for the petitioner to be relegated to the alternate remedy. 4. The facts, with respect to the above writ petition is that the petitioner is a registered works contractor, under the Kerala Value Added Tax Act, 2003. The petitioner was first registered in the assessment year 2013-14. He had only one work in the said year....

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....d compounding. The compounding having been applied for in the assessment year in which the work commenced had to be continued, was the stand of the department. The petitioner's contention is that the petitioner had applied for a compounding in the year 2015-16 but, had specifically not filed any application for the year 2016-17 and there was no compounding applied for that particular work, ie; the second contract obtained by the petitioner. 7. The learned Government Pleader would contend that the petitioner having applied for compounding for all works in the year 2015-16; the second work awarded to the petitioner in that assessment year; would be treated as compounded. The petitioner having paid tax under compounded scheme as against....

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....d opted for compounding up to 31st March, 2015". The earlier proviso as existed from the Kerala Finance Act, 2008 is also extracted hereunder:- "Provided also that in the case of any work covered under the above provisions which remains unexecuted fully or partly at the end of the year, the contractor shall continue to pay tax in respect of such works in accordance with the provisions of this clause". 9. Hence, by the use of words "shall"; till 2014 there was a mandate to continue under the compounding scheme once applied for and allowed. In the year 2014-15, the same was substituted by the above proviso, which confined such continuance till the end of the assessment year ie: upto 31.03.2015. The word 'shall' as employed in....