IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 25848 OF 2018
PETITIONER:
M/S. NANMA PROPERTIES PVT. LIMITED
5B-6, 34/137G, EASTERN CORPORATE
OFFICE,N.H.BYEPASS ROAD, EDAPALLY-682
034,REPRESENTED BY ITS MANAGING DIRECTOR
ASHEEN PANAKKAT.
BY ADV SRI.JOSE JACOB
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,TAXES(A)
DEPARTMENT, GOVERNMENT OF
KERALA,SECRETARIAT, TRIVANDRUM-695 001.
2 STATE TAX OFFICER (WORKS CONTRACT)
OFFICE OF THE DEPUTY COMMISSIONER OF STATE
TAX,WORKS CONTRACT, DEPARTMENT OF STATE
GOODS & SERVICES TAX, REVENUE TOWER, 9TH
FLOOR, ERNAKULAM-682 011.
OTHER PRESENT:
SMT. RESMITHA R. CHANDRAN - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 01.07.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.25848 of 2018
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JUDGMENT
The writ petition is filed challenging Ext.P4 penalty order under Section 67 (1) of the Kerala Value Added Tax Act, 2003 (for short, "the KVAT Act") and Exts.P6 and P7 notices issued by the second respondent under Section 25(1) of the KVAT Act. The main challenge in this writ petition is against the 101st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017, stating that the provisions of the KVAT Act can be enforced only until the expiry of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent Legislature.
2. Heard the learned counsel for the petitioner and the learned Government Pleader.
3. The aforesaid issue has been decided against the petitioner in Sheen Golden Jewels (India) Pvt.Ltd. v. State Tax Officer (IB)-1, Investigation Branch, Thiruvananthapuram and others [2019 KHC 205]. Hence, in view of the judgment in Sheen Golden Jewels (supra), the petitioner is not entitled to get any relief against the said challenge. W.P.(C)No.25848 of 2018 ..3..
4. However, as far as Ext.P4 order passed by the Intelligence Officer is concerned, it is a penalty order under Section 67 (1) of the KVAT Act,2003. The petitioner has to avail the remedy of appeal/revision before the competent authority. Similarly, Exts.P6 and P7 are notices issued by the second respondent Section 25(1) read with Sec.42(3) of the KVAT Act, 2003. The petitioner may have to file objections to the said notices before the second respondent. I am of the opinion that the writ petition can be disposed of as follows:-
The petitioner, if so advised, may file an appeal/revision along with petition for condonation of delay and petition for stay before the competent appellate authority within a period of one month from the date of receipt of a copy of this judgment. If the petitioner files appeal/revision as above, the competent authority shall consider and pass orders on the petition for condonation of delay as well as the petition for stay, within a period of one month thereafter, after affording an opportunity of hearing to the petitioner. The competent authority shall take a lenient view while considering the petition for condonation of delay, taking into account the pendency of the W.P.(C)No.25848 of 2018 ..4..
writ petition before this Court and pass appropriate orders so that the statutory remedy of appeal/revision is not lost to the petitioner.
5. No coercive steps shall be taken to recover the amount covered by Ext.P4 for a period of two months from the date of receipt of a copy of the judgment. If the petitioner fails to comply with the directions as above in filing the appeal and petitions, then, the stay of recovery of Ext.P4 granted shall stand vacated.
6. The petitioner, if so advised, may file reply, if any, to Exts.P6 and P7 notices with all supporting documents before the second respondent within a period of one month from the date of receipt of a copy of this judgment. The second respondent shall consider the objections on merits and pass appropriate orders, if not already passed, in accordance with law, after affording an opportunity of hearing to the petitioner within a period of two months thereafter. The petitioner shall produce a copy of this judgment along with a copy of this writ petition, before the second respondent.
W.P.(C)No.25848 of 2018 ..5..
The writ petition is disposed of as above.
Sd/-
SHOBA ANNAMMA EAPEN,
MBS/ JUDGE
W.P.(C)No.25848 of 2018
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APPENDIX OF WP(C) 25848/2018
PETITIONER'S EXHIBITS
EXHIBIT P1: TRUE COPY OF THE OFFICE INSPECTION
REPORT ISSUED BY THE INTELLIGENCE
DEPARTMENT.
EXHIBIT P2: TRUE COPY OF THE NOTICE FOR ISSUED
PRODUCTION OF BOOKS OF ACCOUNTS.
EXHIBIT P3: TRUE COPY OF NOTICES ISSUED UNDER
SECTION 67(1) OF THE KAVAT ACT FOR
THE YEAR 2015-16 & 2016-17.
EXHIBIT P4: TRUE COPY OF ORDER ISSUED BY THE
INTELLIGENCE DEPARTMENT.
EXHIBIT P5: TRUE COPY OF NOTICE ISSUED UNDER
THE KVAT ACT.
EXHIBIT P6: TRUE COPY OF NOTICES ISSUED UNDER
SECTION 25(1) OF THE KVAT ACT FOR
THE YEAR 2014-15.
EXHIBIT P7: TRUE COPY OF NOTICES ISSUED UNDER
SECTION 25(1) OF THE KVAT ACT FOR
THE YEAR 2015-16.