Kerala High Court
Safarulla Padikkal vs State Tax Officer on 11 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WA.No.80 OF 2021
AGAINST THE JUDGMENT IN WP(C) 19436/2020(D) OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
SAFARULLA PADIKKAL,
AGED 70 YEARS,S/O. KOYAKUNJI,
CONTRACTOR, PROPRIETOR,
CP II 525, MANNA, VALAPATTANAM,
KANNUR 670 010.
BY ADV. SRI.C.K.SREEJITH
RESPONDENTS/RESPONDENTS:
1 STATE TAX OFFICER
GOODS AND SERVICE TAX OFFICE
(WORKS CONTRACTOR)
KANNUR 670 001.
2 THE ASSISTANT COMMISSIONER,
GOODS AND SERVICE TAX DEPARTMENT,
OFFICE OF ASSISTANT COMMISSIONER,
KANNUR 670 001.
3 THE SECRETARY TO GOVERNMENT,
GOODS AND SERVICE TAX DEPARTMENT,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
TRIVANDRUM 695 001.
4 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
W.A. No.80/21 -:2:-
DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,
ROOM NO. 46, NORTH BLOCK,
NEW DELHI 110 001.
5 THE COMMISSIONER OF GST AND
CENTRAL EXCISE DIVISION, KADHI,
4TH FLOOR, TAZA SUPER MARKET
NEAR GST WEST, COMMISSIONERATE,
NEW DELHI 110 001.
6 CHAIRPERSON,
GOODS AND SERVICES TAX NETWORK,
EAST WING , 4TH FLLOR, WORLD MARK-1,
AEROCITY,
NEW DELHI 110 037.
BY P.VIJAYAKUMAR, ASGI
R6 BY SHRI.P.R.SREEJITH, SC, GSTN
SRI.MOHAMMED RAFIQ, SR. GOVT. PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.80/21 -:3:-
JUDGMENT
Dated this the 11th day of January, 2021
Bechu Kurian Thomas, J.
Appellant's attempt to obtain a direction from this Court, to
have access to the GST common portal to enable him to upload
the returns for the period from the date of implementation of the
GST Act, and to get acceptance of the revised return from 2017
to enable filing of regular returns ended up in rejection through
the impugned judgment of the learned Single Judge. He assails
the said judgment, contending that, access to the electronic
portal was not possible due to no fault of his, but due to the
technical laches of the GST network of those responsible.
2. Appellant was a registered works contractor under the
KVAT Act. With the commencement of GST Act, 2017, he
automatically switched over to the GST regime, as evident from
the registration certificate produced as Ext.P1 in the writ petition.
It was contended that under the KVAT Act, being a works
contractor, he had opted for the compounded rate of tax under
Section 8 of the KVAT Act. However, with the advent of GST Act,
he continued in the same style without realizing that composition
was not available for works contractors and tried to file the
return regularly from 1.7.2017 to 31.3.2018.
3. It is the case of the appellant that the common portal of
the GST system was not accepting any return after 31.3.2018
and the same stood blocked for the appellant. According to him,
he could not access the common portal due to which he was
unable to upload the return for the subsequent years or even to
rectify the mistakes for the period till 2018. Appellant thus
sought for directions to accept his revised returns from 2017
onwards and to obtain access to GST portal for uploading the
returns.
4. The respondents objected to the claim raised by the
appellant and pointed out that after the coming into force of the
GST regime, the appellant being a service provider as a works
contractor, was not eligible to opt for composition under Section
10 of the CGST Act. The 'common portal', which is defined under
Section 2(26) of the CGST Act, is notified under Section 146 of
the CGST Act for the purpose of facilitating registration, payment
of tax, furnishing of returns, computation, and settlement of
integrated tax and for carrying out other functions. It was
pointed out that if the appellant had any technical issues as
alleged, it was open to him, as an aggrieved person, to raise
such technical issues with the relevant screenshots and
necessary documents in accordance with law. However, no such
grievance was ever raised by the appellant and on the contrary
the data revealed that appellant was accessing the common
portal several times during the period in dispute.
5. The learned single Judge dismissed the writ petition
holding that the appellant was not able to explain in any manner
that he was unable to open the portal or the circumstances in
which the returns filed by him could not have been accepted.
6. The learned counsel for the appellant vehemently
submitted that the issue arose not on account of any mistake of
the appellant but on account of a technical problem, due to
which the appellant is being put to irreparable hardships.
7. We have considered the rival contentions. After the
coming into force of the GST regime, the Government, on the
basis of recommendations of the GST Council, notified that a
Common Goods and Services Tax Electronic Portal be maintained.
The said portal is maintained as www.gst.gov.in by the Goods
and Services Tax Network, which is a company incorporated
under the Companies Act, 2013. If the appellant had any
grievance, nothing prevented him from taking up the issue in the
appropriate manner with the IT Grievance Redressal Portal so as
to avail the remedy from the Goods and Services Tax Network.
He failed to raise any complaint with the IT Grievance Redressal
Portal. In such circumstances, the appellant cannot seek the
remedy of a writ of mandamus from this Court.
8. In this context, we are mindful of the submission of the
learned counsel for the respondents that the appellant had been
repeatedly accessing the portal for various purposes. However,
he had never attempted to enter the portal for the purpose of
filing the revised option.
9. In the absence of any attempt on the part of the
appellant to seek recourse to the remedy available with the
establishment that maintains the portal, we are of the firm view
that the impugned judgment of the learned single Judge is
perfectly justified and warrants no interference.
10. However, since the appellant can make an application
in accordance with law before the authority concerned, we
reserve the liberty of the appellant to make such an application
as prescribed by law before the appropriate authority. Needless
to say, if such an application is preferred by the appellant, the
same shall be considered by the authority, concerned in
accordance with law.
The writ appeal fails and is dismissed.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge
