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2021 (12) TMI 523 - HC - VAT and Sales TaxInterpretation of proviso to Section 8(a) of the Kerala Value Added Tax Act, 2003 - Constitutional validity of proviso to Section 8(a) - recovery of compounded tax - proviso challenged on the ground that the proviso, as it stands upon amendment to sub-clause (ii) to Section 8(a) of the KVAT Act through Finance Act 2009, is discriminatory and unconstitutional, for the reason that, by giving effect to the amendment, the works executed by the appellant awarded by the State Government, Kerala Water Authority (KWA) or local authorities pay tax higher than the tax payable by the other works contractors under sub-clause (ii). HELD THAT:- This Court is of the view that the judgments relied on by both the counsel need not be referred to in extenso and burden the judgment with all the citations. Reference to the judgment of the Supreme Court in UNION OF INDIA & ORS. VERSUS VKC FOOTSTEPS INDIA PVT LTD. [2021 (9) TMI 626 - SUPREME COURT] would be sufficient to appreciate the law on constitution of a proviso in different circumstances. Proviso was dealing with the contractors executing works contracts of government, KWA and the local bodies. The contractors covered by the proviso, in the considered view of this Court, would continue to be relevant inasmuch as subclause (ii) does not include the contractors who are before the Court in the batch of appeals. The proviso, in the case on hand, could be interpreted both as a situation providing for the excepting of the application of subclause (ii) and/or, as noted by the Supreme Court, can also be treated as an independent provision. Either way, if it is construed as excepting something out of the enactment or qualify something enacted in subclause (ii) then the proviso is independently having scope and applicability in respect of contractors executing government works. The argument of the appellants, though not intended to import something into the enacting part, is definitely attempting to delete what is expressly provided by the proviso. The Court cannot read anything into a statutory provision that is plain and unambiguous. Similarly, a statute is an edict of the Legislature, the language employed in a statute is the determinative factor of legislative intent. The learned Senior Counsel appearing for appellants has submitted that the writ petitions were filed challenging the show cause notice issued by the authority. The challenge of the appellants since is not accepted, it is made clear that the appellants are subjected only to the tax payable under the proviso but not at any other rate. Special Government Pleader Mr Mohammed Rafiq submits that it is always open to the dealer to file a reply/explanation to the show cause notice and the issue would be considered in accordance with law. The challenge is, to some extent, on account of the contribution by the draftsman and to some extent in understanding the scope and area of operation of proviso by the appellants. Appeal dismissed.
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