Kerala High Court
C.M.Jose vs The Deputy Commissioner ... on 16 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
WP(C) NO. 19247 OF 2021
PETITIONER:
C.M.JOSE
PROPRIETOR,
KALLETHU AGENCIES,
THEVALAPURAM, PUTHOOR, KOTTARAKKARA, KOLLAM-691507.
BY ADV V.DEVANANDA NARASIMHAM
RESPONDENTS:
1 THE DEPUTY COMMISSIONER (APPEALS)
KSGST DEPARTMENT ,
ASRAMAM P.O, KOLLAM-691002.
2 THE ASSISTANT COMMISSIONER
KSGST DEPARTMENT, PRB BUILDING, MARKET JUNCTION,
KOTTARAKKARA, KOLLAM-691506.
3 THE DEPUTY TAHSILDAR,
TALUK OFFICE, KOTTARAKKARA, KOLLAM-691506.
BY ADV.DR.THUSHARA JAMES, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19247 OF 2021
2
BECHU KURIAN THOMAS, J
============================
W.P.(C) Nos.19247 of 2021
--------------------------------------------
Dated this the 16 th day of September, 2021
JUDGMENT
The writ petition is preferred challenging Ext.P2
order of assessment for the assessment years 2015-
16, 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 the
petitioner. The first appeals were dismissed.
2. The main contention taken by the petitioner is that
the issue on levy of tax on discounts/incentives
received by credit notes subsequent to purchases
from suppliers has been referred for consideration
to the Full Bench by reference order dated
24.07.2020 in Memana Agencies v. The
Commercial Tax Officer, Cherthala (W.P.(C)
No.5467/2017). According to the petitioner, since
WP(C) NO. 19247 OF 2021
identical issues arise in this case, the writ petition
is 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 this case, 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
too. 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 issues in the order of
WP(C) NO. 19247 OF 2021
assessment has been referred to the Full Bench, the
same is not a reason for entertaining this writ
petition especially when an effective remedy of a
second appeal before the Tribunal is available to
the petitioner. A second appeal is available to the
petitioner against Ext.P3 order in this writ petition.
Accordingly, the petitioner ought to be relegated to
the remedies under the Statute.
5. When this Court expressed its disinclination to
entertain this writ petition, 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 was also pleaded that in
view of the peculiar situation now prevailing,
WP(C) NO. 19247 OF 2021
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 submissions, 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 this writ
petition, shall be kept in abeyance for a period of
30 days from today, to enable the petitioner to
move the appellate authority.
This writ petition is disposed of as above.
sd/-
BECHU KURIAN THOMAS,
JUDGE
AMV/23/09/2021
WP(C) NO. 19247 OF 2021
APPENDIX OF WP(C) 19247/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF ANNUAL RETURN E-FILED ON
07.05.18 U/S 20 THROUGH KVATIS FOR THE
YEAR 2016-17 BEFORE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED
01.03.2019 PASSED U/S 25(1) OF THE KVAT
ACT FOR THE YEAR 2016-17 BY 2ND
RESPONDENT.
EXHIBIT P3 TRUE COPY OF 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
ASSESSMENT FOR THE YEAR 2016-17.
EXHIBIT P4 TRUE COPY OF THE RR NOTICE FOR THE YEAR
2016-17 DATED 16/07/21 ISSUED U/S 7 AND
34 OF THE RR ACT BY 3RD RESPONDENT TO
PETITIONER.
EXHIBIT P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE
COURT DATED 02.12.15 IN WP(C)NO.5077/09
OF M/S DEVICES DISTRIBUTORS VS STATE OF
KERALA.
EXHIBIT P6 TRUE COPY OF REFERENCE ORDER PASSED IN
WP(C)NO.5467/17, O.T. REV NOS 132,
137/19 ETC OF M/S MEMANA AGENCIES,
CHERTHALA DATED 24.07.20 BY THE DIVISION
BENCH OF THIS HON'BLE COURT.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
