Mas Make Polymers vs The Commercial Tax Officer
2021 Latest Caselaw 17033 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                      WP(C) NO. 16523 OF 2021
PETITIONER:

          MAS MAKE POLYMERS
          VELLALACHIPOTTA, ELAPPULLI,
          EDUPPUKULAM P.O, PALAKKAD, REPRESENTED BY ITS
          MANAGING PARTNER, K.P.ABDUL SALEEM.

          BY ADVS.
          S.ANIL KUMAR (TRIVANDRUM)
          RAHUL A.
          APARNA ANIL



RESPONDENTS:

    1     THE COMMERCIAL TAX OFFICER
          (NOW RE-DESIGNATED AS STATE TAX OFFICER), 3RD CIRCLE,

          GST OFFICE COMPLEX, NEAR CIVIL STATION, PALAKKAD,
          PIN-678001.

    2     THE DEPUTY COMMISSIONER (APPEALS)
          STATE GST DEPARTMENT, GST OFFICE COMPLEX, NEAR CIVIL
          STATION, PALAKKAD, PIN-678001.




          SMT. THUSHARA JAMES - SR.GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16523 OF 2021
                                      2



                              JUDGMENT

The petitioner has approached this Court

impugning Ext.P3 order of the 2nd respondent

Appellate Authority, asserting that the said order,

though dated 14.10.2020, was received by them only

on 12.07.2021. The petitioner says that even

though, in Ext.P2 Memorandum of Appeal, the grounds

for the challenge of the assessment were

specifically pleaded, none of them have been

considered by the Appellate Authority, while Ext.P3

order has been issued. They, therefore, pray that

Ext.P3 be set aside and the 2nd respondent -

Appellate Authority be directed to reconsider

Ext.P2 in its proper perspective.

2. I have heard Shri.S.Anil Kumar, learned

counsel for the petitioner and Smt.Thushara James,

learned Senior Government Pleader appearing for the

respondents.

WP(C) NO. 16523 OF 2021

3. The learned Senior Government Pleader

submitted that this writ petition is not

maintainable because the petitioner has an

effective, alternative remedy, of filing a Second

Appeal against Ext.P3. She submitted that without

exhausting the said remedy, the petitioner could

not have approached this Court, particularly

because the challenge against the impugned order is

not merely on law but on the facts involved also.

She, therefore, prayed that this writ petition be

dismissed.

4. In reply, Shri.S.Anil Kumar, learned counsel

for the petitioner, conceded that his client has a

remedy of Second Appeal; but contended that, in

spite of the same, they are entitled to approach

this Court because the challenge is based on law,

namely that the 2nd respondent - Appellate Authority

has disposed of the Appeal without following due

procedure.

WP(C) NO. 16523 OF 2021

5. Even when I hear Shri.S.Anil Kumar on the

afore lines, the pleadings on record would clearly

show that the attempt of the petitioner is to

challenge Ext.P3 on its merits and I am certain

that when the petitioner has an alternative,

efficacious statutory remedy available, it would

not be proper for this Court to exercise any power

under Article 226 of the Constitution of India.

6. In the afore circumstances, I am certain

that the petitioner must invoke their alternative

remedy; for which purpose, I also leave them

liberty to file necessary application for

condonation of delay, if so necessary, before the

2ndrespondent - Appellate Authority; with a

concomitant order that the same shall be considered

by the said Authority in terms of law.

7. In order to enable the petitioner to invoke

their second Appellate remedy without the threat of

imminent action, I direct that all recovery based

on Ext.P1 assessment shall remain deferred for a WP(C) NO. 16523 OF 2021

period of one month from the date of receipt of a

copy of this judgment.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/18.8 WP(C) NO. 16523 OF 2021

APPENDIX OF WP(C) 16523/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF THE PENALTY ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11.

Exhibit P1(A) COPY OF THE PENALTY ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12.

Exhibit P1(B) COPY OF THE PENALTY ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13.

Exhibit P2 COPY OF APPEAL MEMORANDUM AGAINST EXT.P1 FILED BEFORE THE 2ND RESPONDENT.

Exhibit P2(A) COPY OF APPEAL MEMORANDUM AGAINST EXT.P1(A) FILED BEFORE THE 2ND RESPONDENT.

Exhibit P2(B) COPY OF APPEAL MEMORANDUM AGAINST EXT.P1(B) FILED BEFORE THE 2ND RESPONDENT.

EXHIBIT P3 COPY OF THE COMMON ORDER DATED 14.10.2020 DISMISSING EXTS. P2 TO P2(B) APPEALS BY THE 2ND RESPONDENT.