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. 30086 OF 2018
PETITIONER:
FAISAL A.
AGED 40 YEARS
S/O.SYIDALAVI, PROPRIETOR FLOWMATE PAINTS
AND SANITARY , KPH TOWER, 340 ZI, MANNARKKAD
ROAD, ALANALLUR, PALAKKAD DISTRICT, PIN-678
601.
BY ADVS.
JACOB SEBASTIAN
K.V.WINSTON
ANU JACOB
RESPONDENTS:
1 STATE OF KERALA AND
BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
TAXES, SECRETARIAT, TRIVANDRUM-695001.
2 STATE TAX OFFICER,
STATE GST DEPARTMENT,
MANNARKKAD 678 582
3 THE COMMISSIONER,
STATE GOODS AND SERVICE TAX DEPARTMENT,
THIRUVANANTHAPURAM 695 001.
4 CENTRAL BOARD OF EXCISE AND CUSTOMS
DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE, GOVERNMENT OF INDIA,
NEW DELHI 110 001.
BY ADV SMT.SHEELA DEVI.I., SC, CENTRAL BOARD
OF EXCISE AND CUSTOMS
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.30086 OF 2018
..2..
JUDGMENT
The writ petition is filed by the petitioner challenging 101st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017 stating that the provisions of the Kerala Value Added Tax Act,2003 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of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent Legislature and the petitioner further challenges Exts.P2 and P5 order under Sec.25(1) of the KVAT Act, 2003 for the assessment year 2012-13, passed by the second respondent stating that it is unconstitutional as it is ultra vires of the Constitution of India.
2. Heard the learned counsel for the petitioner and the learned Government Pleader.
3. The aforesaid challenge of 101 st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017 has been considered in Sheen Golden Jewels (India) Pvt.Ltd. v. State Tax Officer (IB)-1, Investigation Branch, Thiruvananthapuram and others [2019 KHC 205] and decided against the petitioner. Hence, in view of the judgment in Sheen Golden Jewels (Supra), the petitioner is not entitled to get any W.P.(C)No.30086 OF 2018 ..3..
relief against the said challenge.
4. However, as far as Ext.P1 order passed by the second respondent is considered, the petitioner has to avail the remedy of appeal before the appellate authority and I am of the opinion that, the writ petition can be disposed of directing the petitioner to approach the statutory authorities by way of appeal.
5. Hence, the writ petition is disposed of as follows: The petitioner, if so advised, shall file an appeal along with petition for condonation of delay and petition for stay within a period of one month from the date of receipt of a copy of this judgment before the competent appellate authority. The appellate 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 appellate authority shall take a lenient view while considering the petition for condonation of delay, taking into account the pendency of the writ petition before this Court and pass appropriate orders so that the statutory remedy of appeal is not lost to the petitioner. The second respondent shall not take any coercive steps to recover the amount covered by W.P.(C)No.30086 OF 2018 ..4..
Ext.P1 for a period of two months from the date of receipt of a copy of this judgment. In case of failure by the petitioner to comply with the directions as above in filing the appeal and petitions, the stay of recovery of Ext.P1 granted, shall stand vacated. The petitioner shall produce a copy of this judgment along with this writ petition, before the second respondent.
Sd/-
SHOBA ANNAMMA EAPEN, JUDGE MBS/ W.P.(C)No.30086 OF 2018 ..5..
APPENDIX OF WP(C) 30086/2018 PETITIONER'S EXHIBITS:-
EXHIBIT P1 A TRUE COPY OF THE ORDER DATED AUGUST 29,2018 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF THE KVAT ACT.