Kerala High Court
Annamanada Kaliman Vyavasaya ... vs The Commercial Tax Officer on 23 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
W.A. NO.696 OF 2018
(AGAINST THE JUDGMENT DATED 9.2.2018 IN WPC 1318/2018
OF HIGH COURT OF KERALA)
APPELLANT/PETITIONER:
ANNAMANADA KALIMAN VYAVASAYA SAHAKARANA SANGHAM LTD.,
NO.C.INDR 72, MAMBRA.P.O., THRISSUR DISTRICT,
KERALA- 680 308, REP. BY ITS PRESIDENT
BY ADVS.
SRI.DEEPU THANKAN
SMT.NIMMY JOHNSON
RESPONDENTS/RESPONDENTS:
1 THE COMMERCIAL TAX OFFICER,
CHALAKKUDY, THRISSUR DISTRICT,
KERALA- 670 307
2 KHADI & VILLAGE INDUSTRIES BOARD,
THIRUVANANTHAPURAM- 695 001,
REP. BY ITS SECRETARY
BY ADV N.RAJAGOPALAN NAIR
SRI. V. K.SHAMSUDHEEN, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.11.2021, ALONG WITH W.A.NO.750/2018, WP(C).Nos.21007/2018,
16610/2021 & 16618/2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
W.A. NO.750 OF 2018
(AGAINST THE JUDGMENT DATED 9.2.2018 IN WPC 1811/2018
OF HIGH COURT OF KERALA)
APPELLANT/PETITIONER:
ANNAMANADA KALIMAN VYAVASAYA SAHAKARANA SANGHAM LTD.,
NO. C.INDR 72, MAMBRA P.O., THRISSUR DISTRICT,
KERALA - 680 308, REP.BY ITS PRESIDENT.
BY ADVS.
SRI.DEEPU THANKAN
SMT.NIMMY JOHNSON
RESPONDENTS/RESPONDENTS:
1 THE COMMERCIAL TAX OFFICER,
CHALAKKUDY, THRISSUR DISTRICT,
KERALA - 670 307.
2 KHADI & VILLAGE INDUSTRIES BOARD,
THIRUVANANTHAPURAM - 695 001,
REP.BY ITS SECRETARY.
BY ADV. N.RAJAGOPALAN NAIR
SRI.V.K.SHAMSUDHEEN, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021,
ALONG WITH W.A.NO.696/2018, W.P.(C)Nos.21007/2018, 16610/2021 &
16618/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
W.P.(C) NO.21007 OF 2018
PETITIONER:
ANNAMANADA KALIMAN VYAVASAYA SAHAKARANA SANGHAM LTD.,
No.C.INDR 72, MAMBRA P.O.,
REP. BY ITS PRESIDENT.
BY ADVS.
SRI.DEEPU THANKAN
SRI.A.ABDUL NABEEL
SMT.NIMMY JOHNSON
SMT.UMMUL FIDA
RESPONDENTS:
1 THE COMMERCIAL TAX OFFICER,
CHALAKKUDY-670 307.
2 KHADI & VILLAGE INDUSTRIES BOARD,
THIRUVANANTHAPURAM-695 001,
REP. BY ITS SECRETARY.
BY ADVS.
N.RAJAGOPALAN NAIR
SRI. V. K.SHAMSUDHEEN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2021, ALONG WITH WP(C)NOS.16610/2021, 16618/2021 AND
W.A.NOS.696/2018, 750/2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
W.P.(C) NO.16610 OF 2021
PETITIONER:
ANNAMANADA KALIMAN VYAVASAYA SAHAKARANA SANGHAM LTD.,
NO.C.INDR 72, MAMBRA.P.O, REP.BY ITS PRESIDENT,
RAVI.O.C, ORAVAMKUZHIPARAMBIL HOUSE,
ARAYANKUDI, MAMBRA.P.O, THRISSUR DISTRICT.
BY ADVS.
DEEPU THANKAN
UMMUL FIDA
LAKSHMI SREEDHAR
RESPONDENTS:
1 THE STATE TAX OFFICER,
STATE GOODS & SERVICE TAX DEPARTMENT,
CHALAKKUDY, THRISSUR DISTRICT-670 307.
2 KHADI & VILLAGE INDUSTRIES BOARD,
THIRUVANANTHAPURAM-695 001,
REPRESENTED BY ITS SECRETARY.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2021, ALONG WITH W.A.NOS.696/2018, 750/2018,
WP(C).Nos.21007/2018 & 16618/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
W.P.(C) NO.16618 OF 2021
PETITIONER:
ANNAMANADA KALIMAN VYAVASAYA SAHAKARANA SANGHAM LTD.,
NO.C.INDR 72, MAMBRA.P.O,
REPRESENTED BY ITS PRESIDENT, RAVI.O.C,
ORAVAMKUZHIPARAMBIL HOUSE, ARAYANKUDI, MAMBRA.P.O,
THRISSUR DISTRICT.
BY ADVS.
DEEPU THANKAN
UMMUL FIDA
LAKSHMI SREEDHAR
RESPONDENTS:
1 THE STATE TAX OFFICER,
STATE GOODS & SERVICE TAX DEPARTMENT,
CHALAKKUDY, THRISSUR DISTRICT-670 307.
2 KHADI & VILLAGE INDUSTRIES BOARD,
THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS
SECRETARY.
SRI.V.K.SHAMSUDHEEN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2021, ALONG WITH W.A.NOS.696/2018, 750/2018,
WP(C).Nos.21007/2018 & 16610/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
6
JUDGMENT
[W.A.Nos.696/2018, 750/2018, W.P.(C)Nos.21007/2018,
16610/2021 & 16618/2021]
------------------------------------
Dated: 23rd November, 2021
BASANT BALAJI, J.
Writ Appeal Nos.696 of 2018 and 750 of 2018 are
filed by the appellant challenging the dismissal of Writ
Petition(C)Nos.1318/2018 and 1811/2018 respectively
whereby the appellants challenge to Ext.P6, was
negatived without prejudice to the right of the
appellant to file an appeal challenging the orders
impugned as an appealable remedy under Section 55 as
provided under the of the KVAT Act (hereinafter refereed
to as the 'Act' for short).
2. W.P.(C)Nos.21007/2018, 16610/21 and 16618/21
are filed challenging the proceedings of the Commercial
Tax Officer, whereby the claim for exemption under Entry
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
55(19) of the First Schedule of the Act and the tax
imposed for the years 2008-2009, 2014-15 & 2015-16
respectively are also negatived.
3. The learned single judge found that the
impugned order passed by the Commercial Tax Officer
under Section 25(1) is an appealable order under Section
55 of the Act and that there are no exceptional grounds
on which this Court can interfere even when the party
has an effective alternate remedy under the statute. The
writ petitions were dismissed without prejudice to the
right of the appellant/petitioner to file the impugned
order in appeal. The Writ Petitions mentioned above were
tagged along with these Writ Appeals since the issue
involved in those writ petitions were also same but for
different assessment years.
4. Heard learned counsel on either side.
5. The counsel for the appellant/petitioner
Sri.Deepu Thankan submitted that the petitioner has been
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
granted a certificate by the Kerala Khadi and Village
Industries Board for getting exemption from payment of
Value Added Tax and hence the first respondent ought not
have passed the impugned order imposing tax on the
appellant/petitioner. His claim is that, the bricks and
tiles manufactured by the appellant are coming under the
exempted goods under Entry 55(19) of the First Schedule
of the Act. This contention has been taken before the
first respondent herein, but the first respondent found
that the appellant is not entitle for the exemption and
hence imposed tax.
6. Sri.V.K.Shamsudheen, learned Senior Government
pleader for the respondents argued that the learned
Single Judge had rightly dismissed the writ petition,
since there is an appeal provision provided in the Act
itself against the orders passed by the first respondent
and without exhausting that remedy he cannot rush to
this Court under Article 226 of the Constitution of
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
India and there are no exceptional circumstance
warranting interference by this court.
7. Though the counsel for the appellant persuaded
us to go into the merits of the case, we are not
inclined to do the same, for the reason that there is an
efficacious remedy available to him to raise all the
questions of fact and law. We note that, the learned
Single Judge has rightly dismissed the writ petition
without exercising the extra ordinary jurisdiction under
article 226 of the Constitution of India and we confirm
the judgment of the learned single judge and hence the
appeal stands dismissed.
The appellant is given liberty to raise all
questions of fact and law before the Appellate Authority
and keeping in view the certification of question placed
before us by the respective party, and in view of the
fact that this is an exceptional case, we have to
protect the interest of the dealer during the pendency
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
of the appeal before the Deputy Commissioner(Appeal) and
for that reason we stay the recovery of respective
orders during the pendency of the appeal. The appellant
is given six weeks time to file the appeal before the
Deputy Commissioner (Appeals), and since the dealer has
been working of his remedy before this Court, if the
appeal is filed within the time mentioned above, the
Appellate Authority may treat the appeal filed by the
appellant as one filed in time without delay and the
Appellate Authority is directed to dispose of the appeal
within a period of six months thereafter.
With the the above observations, the Writ Appeals
as well as the Writ Petitions are dismissed.
Sd/-
S.V.BHATTI, JUDGE
Sd/-
BASANT BALAJI, JUDGE
ss
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
APPENDIX OF WP(C) 21007/2018
PETITIONER EXHIBITS
EXHIBIT-P1: TRUE COPY OF THE EXEMPTION CERTIFICATE FOR
THE PERIOD FROM 1/4/2008 TO 31/3/2013 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT-P2: TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL DATED 30/9/2015.
EXHIBIT-P3: TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL DATED 17/2/2007.
EXHIBIT-P4: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 25/3/2015.
EXHIBIT-P5: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN W.P.NO.37741/2016 DATED 17/7/2017.
EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 24/11/2017
PASSED BY THE 1ST RESPONDENT.
EXHIBIT-P7: A TRUE COPY OF THE JUDGMENT DATED 9.2.2018
IN WPC NO.1318 OF 2018.
EXHIBIT-P8: A TRUE INTERIM ORDER DATED 20.3.2018 IN
W.A.NO.696/2018.
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
APPENDIX OF WP(C) 16610/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE EXEMPTION CERTIFICATE FOR
THE PERIOD FROM 1/4/2013 TO 31/3/2016 ISSUED
BY THE SECOND RESPONDENT.
Exhibit P2 TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL DATED 30/9/2015
Exhibit P3 TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL DATED 17/2/2007
Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER DATED
16/03/2021 ISSUED BY THE FIRST RESPONDENT
Exhibit P5 A TRUE COPY OF THE DEMAND NOTICE DATED
16/03/2021 ISSUED BY THE FIRST RESPONDENT
Exhibit P6 A TRUE COPY OF INTERIM ORDER PASSED BY THIS
HON'BLE COURT IN W.P(C)NO.21007/2018 DATED
13/09/2018.
Writ Appeal Nos.696 of 2018, 750 of 2018,
W.P.(C)Nos.21007 of 2018, 16610 of 2021
& 16618 of 2021
APPENDIX OF WP(C) 16618/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE EXEMPTION CERTIFICATE FOR
THE PERIOD FROM 1/4/2013 TO 31/3/2016 ISSUED
BY THE SECOND RESPONDENT
Exhibit P2 TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL DATED 30/9/2015
Exhibit P3 TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL DATED 17/2/2007
Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER DATED
16/03/2021 ISSUED BY THE FIRST RESPONDENT
Exhibit P5 A TRUE COPY OF THE DEMAND NOTICE DATED
16/03/2021 ISSUED BY THE FIRST RESPONDENT
Exhibit P6 A TRUE COPY OF THE INTERIM ORDER PASSED BY
THE HON'BLE COURT IN W.P(C)NO.21007/2018
DATED 13/09/2018.
