Kerala High Court
C.M.Jose vs The Deputy Commissioner ... on 14 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
WP(C) NO. 18820 OF 2021
PETITIONER/S:
C.M.JOSE
AGED 64 YEARS
PROPRIETOR,
KALLETHU AGENCIES,
THEVALAPURAM,
PUTHOOR,
KOTTARAKKARA,
KOLLAM-691 507.
BY ADV V.DEVANANDA NARASIMHAM
RESPONDENTS:
1 THE DEPUTY COMMISSIONER (APPEALS)
KSGST DEPARTMENT, ASRAMAM P.O.,
KOLLAM-691 002
2 THE ASSISTANT COMMISSIONER,
KSGST DEPARTMENT,
PRB BUILDING, MARKET JN.,
KOTTARAKKARA ,KOLLAM-691 506
3 THE DEPUTY TAHSILDAR,
TALUK OFFICE, KOTTARAKKARA,
KOLLAM-691 506
DR.THUSHARA JAMES-SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021, ALONG
WITH WP(C).18833/2021, 18915/2021 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
WP(C) NO. 18833 OF 2021
PETITIONER:
JEFFIN MATHEW JOSE
AGED 29 YEARS
PROPRIETOR,
KALLETHU STEELS,
CHEMANGADU, PUTHOOR,
KOTTARAKKARA, KOLLAM-691 507
BY ADV V.DEVANANDA NARASIMHAM
RESPONDENTS:
1 THE DEPUTY COMMISSIONER ( APPEALS )
KSGST DEPARTMENT,
ASRAMAM P.O.,
KOLLAM-691 002
2 THE ASSISTANT COMMISSIONER,
KSGST DEPARTMENT,
PRB BUILDING,
MARKET JN., KOTTARAKKARA,
KOLLAM-691 506
3 THE DEPUTY TAHSILDAR,
TALUK OFFICE,
KOTTARAKKARA ,KOLLAM-691 506
DR.THUSHARA JAMES-SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021,
ALONG WITH WP(C).18820/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
WP(C) NO. 18915 OF 2021
PETITIONER/S:
JEFFIN MATHEW JOSE,
AGED 29 YEARS
PROPRIETOR, KALLETHU STEELS,
CHEMANGADU, PUTHOOR,
KOTTARAKKARA, KOLLAM 691 507.
BY ADV V.DEVANANDA NARASIMHAM
RESPONDENTS:
1 THE DEPUTY COMMISSIONER (APPEALS)
KSGST DEPARTMENT,
ASRAMAM P.O.,
KOLLAM 691 002.
2 THE ASSISTANT COMMISSIONER,
KSGST DEPARTMENT,
PRB BUILDING,
MARKET JN, KOTTARAKKARA,
KOLLAM, 691 506.
3 THE DEPUTY TAHSILDAR,
TALUK OFFICE,
KOTTARAKKARA,
KOLLAM 691 506.
DR.THUSHARA JAMES-SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021,
ALONG WITH WP(C).18820/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
WP(C) NO. 18948 OF 2021
PETITIONER/S:
JEFFIN MATHEW JOSE
AGED 29 YEARS
PROPRIETOR,
KALLETHU STEELS,
CHEMANGADU, PUTHOOR,
KOTTARAKKARA, KOLLAM-691 507.
BY ADV V.DEVANANDA NARASIMHAM
RESPONDENTS:
1 DEPUTY COMMISSIONER (APPEALS)
KSGST DEPARTMENT,
ASRAMAM P.O.,
KOLLAM-691 002.
2 THE ASSISTANT COMMISSIONER,
KSGST DEPARTMENT,
PRB BUILDING, MARKET JN,
KOTTARAKKARA, KOLLAM-691 506.
3 THE DEPUTY TAHSILDAR
TALUK OFFICE,
KOTTARAKKARA, KOLLAM-691 506.
DR.THUSHARA JAMES-SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021,
ALONG WITH WP(C).18820/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
5
BECHU KURIAN THOMAS, J
============================
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
--------------------------------------------
Dated this the 14 th day of September, 2021
JUDGMENT
These writ petitions are preferred challenging Ext.P2
order of assessment for the assessment years 2014-15,
and also Ext.P3 common order of the First Appellate
Authority for the assessment years 2014-15 2015-16
and 2016-17, in respect of two different assessees.
The first appeals preferred by the petitioners were
also dismissed.
2. The main contention taken by the petitioners is that
the issue on levy of tax on discounts/incentives
received by credit notes subsequent to the purchase
from suppliers has been referred for consideration to
the Full Bench by reference order dated 27.07.2020
in Memana Agencies v. The Commercial Tax Officer,
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
Cherthala (W.P.(C) No.5467/2017). According to the
petitioner, since identical issues arise in these four
cases, the writ petitions are required to be admitted,
awaiting the decision of the Full Bench.
3. I have heard Adv.V.Devananda Narasimham, the
learned counsel for the petitioner as well as
Adv.Dr.Thushara James, learned Senior Government
Pleader.
4. On a perusal of order of assessement, which is
produced as Ext.P2 as well as the first appellate
order produced as Ext.P3 in all these cases, it can be
seen that several issues have been considered in each
of the assessment years and several questions have
been raised for consideration in the appeals. The
levy of tax on discounts or incentives received by
credit notes was only one of the issues amongst
many other issues that arose for consideration in
those assessment years. Merely because, one of the
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
issues in the order of assessment has been referred to
the Full Bench, the same is not a reason for
entertaining these writ petitions especialy when an
effective remedy of a second appeal before the
Tribunal is available to the petitioner. Accordingly,
the petitioners ought to be relegated to the remedies
under the Statute. A second appeal is available to
the petitioners against Ext.P3 order in all these writ
petitions.
5. When this Court expressed its disinclination to
entertain these writ petitions, the learned counsel for
the petitioner submitted that, petitioner apprehends
coercive proceedings to be completed by the time
petitioner approaches the appellate authority. It was
also pointed out that revenue recovery proceedings
have already been initiated as evident from Ext.P4
and therefore the appeals may itself become
infructuous. It is also pleaded that in view of the
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
peculiar situation now prevailing, unless the revenue
recovery proceedings are stayed, to enable the
petitioner to get a breathing time for preferring the
appeal, the petitioner will be subjected to
irrepareable loss and hardships.
6. I find merit in the aforesaid submission, I am of the
considered view that a breathing time ought to be
granted to the petitioner to move the appellate
authority. Accordingly, the revenue recovery
proceedings initiated as Ext.P4, in all these four writ
petitions, shall be kept in abeyance for a period of
30 days from today, to enable the petitioner to move
the appellate authority.
These writ petitions are disposed of as above.
Sd/-
BECHU KURIAN THOMAS,
JUDGE
AMV/14/09//2021
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
APPENDIX OF WP(C) 18820/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ANNUAL RETURN-E-FILED ON 22.04.16
THROUGH KVATIS FOR THE YEAR 2014-15 BEFORE 2ND
RESPONDENT
Exhibit P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.01.19
PASSED U/S 25 (1) OF THE KVAT ACT FOR THE YEAR
2014-15 BY THE 2ND RESPONDENT
Exhibit P3 TRUE COPY OF THE COMMON 1ST APPELLATE ORDER DATED
08.02.21 FOR THE YEARS 2014-15, 15-16 AND 2016-17
PASSED BY 1ST RESPONDENT DIRECTING TO MODIFY THE
ASSESSMENT FOR THE YEAR 2014-15
Exhibit P4 TRUE COPY OF THE RR NOTICE FOR THE YEAR 2014-15
DATED 16.07.21 ISSUED U/S 7 AND 34 OF THE RR ACT
BY THE 3RD RESPONDENT TO THE PETITIONER
Exhibit P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED
02.12.15 IN WPC NO.5077/09
Exhibit P6 TRUE COPY OF THE REFERENCE ORDER PASSED IN WPC
NO.5467/17, O.T.REV NOS 132, 137/19 ETC DATED
24.07.2020 BY THE DIVISION BENCH OF THIS HON'BLE
COURT
RESPONDENTS EXHIBITS : NIL
TRUE COPY P.A.TO JUDGE
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
APPENDIX OF WP(C) 18833/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ANNUAL RETURN-E-FILED ON 01.05.17
THROUGH KVATIS FOR THE YEAR 2015-16
Exhibit P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 26.02.19
PASSED U/S 25 (1) OF THE KVAT ACT FOR THE YEAR
2015-16 BY THE 2ND RESPONDENT
Exhibit P3 TRUE COPY OF THE COMMON 1ST APPELLATE ORDER DATED
10.02.21 FOR THE YEARS 2014-15, 15-16 AND 2016-17
PASSED BY 1ST RESPONDENT DIRECTING TO MODIFY THE
ASSESSMENT
Exhibit P4 TRUE COPY OF THE RR NOTICE DATED 26.07.21 ISSUED
U/S 7 AND 34 OF THE RR ACT BY THE 3RD RESPONDENT
TO THE PETITIONER
Exhibit P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED
02.12.15 IN WPC NO.5077/09
Exhibit P6 TRUE COPY OF THE REFERENCE ORDER PASSED IN WPC
NO.5467/17, O.T.REV NOS 132, 137/19 ETC DATED
24.07.2020 BY THE DIVISION BENCH OF THIS HON'BLE
COURT
RESPONDENTS EXHIBITS NIL
TRUE COPY P.A.TO JUDGE
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
APPENDIX OF WP(C) 18915/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ANNUAL RETURN E FILED ON 06.06.16
THROUGH KVATIS FOR THE YEAR 2014-15.
Exhibit P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.01.19
PASSED U/S 25 (1) OF THE KVAT ACT FOR THE YEAR
2014-15 BY THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE COMMON IST APPELLATE ORDER DATED
10.02.21 FOR THE YEARS 2014-15 15-16, AND 2016-17
PASSED BY IST RESPONDENT DIRECTING TO MODIFY THE
ASSESSMENT.
Exhibit P4 TRUE COPY OF THE RR NOTICE DATED 26.07.21 ISSUED
U/S 7 AND 34 OF THE RR ACT BY THE 3RD RESPONDENT
TO THE PETITIONER.
Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT
DATED 02.12.15 IN WPC NO.5077 /09.
Exhibit P6 TRUE COPY OF THE REFERENCE ORDER PASSED IN WPC NO.
5467/17, O.T. REV NOS. 132, 137/19 ETC. DATED
24.07.20 BY THE DIVISION BENCH OF THIS HONBLE
COURT.
RESPONDENTS EXHIBITS NIL
TRUE COPY P.A.TO JUDGE
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
APPENDIX OF WP(C) 18948/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ANNUAL RETURN E-FILED ON 16.5.2017
THROUGH KVATIS FOR THE YEAR 2016-17
Exhibit P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 1.3.2019
PASSED U/S 25(1) OF THE KVAT ACT FOR THE YEAR
2016-17 BY THE 2ND RESPONDENT
Exhibit P3 TRUE COPY OF THE COMMON 1ST APPELLATE ORDER DATED
10.2.21 FOR THE YEARS 2014-15, 15-16 AND 2016-17
PASSED BY 1ST RESPONDENT DIRECTING TO MODIFY THE
ASSESSMENT
Exhibit P4 TRUE COPY OF THE RR NOTICE DATED 26.7.21 ISSUED
U/S 7 AND 34 OF THE RR ACT BY THE 3RD RESPONDENT
Exhibit P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED
2.12.2015 IN WPC NO 5077/09
Exhibit P6 TRUE COPY OF THE REFERENCE ORDER PASSED IN WPC NO
5467/17,O.T REV NOS 132, 137/19 ETC DATED 24.7.20
BY THE DIVISION BENCH OF THIS HON'BLE COURT .
RESPONDENTS EXHIBITS NIL
TRUE COPY P.A.TO JUDGE
W.P.(C) Nos.18820, 18833, 18915
and 18948 of 2021
