C.M . Jose, Kallethu Agencies, ... vs The Kerala Value Added Tax ...
2022 Latest Caselaw 9257 Ker

W.P(C) .25715/22                       1



                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                    THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                           WP(C) NO. 25715 OF 2022
PETITIONER/S:

              C.M . JOSE, KALLETHU AGENCIES, KOTTARAKKARA
              AGED 65 YEARS
              KALLETHU AGENCIES, THEVALAPURAM, PUTHOOR, KOTTARAKKARA,
              KOLLAM., PIN - 691507
              BY ADV V.DEVANANDA NARASIMHAM


RESPONDENT/S:

      1       THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL,
              THIRUVANANTHAPURAM
              SASTHAMANGALAM P.O, THIRUVANATHAPURAM., PIN - 695010
      2       THE COMMERCIAL TAX OFFICER, KOTTARAKKARA
              KSGST DEPARTMENT, PRB BUILDING, MARKET JN,
              KOTTARAKKARA, KOLLAM, PIN - 691506
      3       THE DEPUTY TAHASILDAR, KOTTARAKKARA
              TALUK OFFICE, KOTTARAKKARA, KOLLAM, PIN - 691506
              ADV. THUSHARA JAMES (SR GP)

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C) .25715/22                                   2




                                      JUDGMENT

Petitioner suffered Ext.P1 order of assessment which was challenged by him by

filing an appeal before the First Appellate Authority. The First appellate Authority has

modified Ext.P1 order to some extent. The petitioner, therefore, approached the 1 st

respondent-Tribunal by filing a second appeal. The said appeal is pending

consideration before the Tribunal.

2. Learned counsel appearing for the petitioner submits that the substantial

portion of the demand will be wiped out on account of the fact that the issue raised now

been decided by a Full Bench of this Court in Saji Thomas v. Assistant

Commissioner and Others [(2022) 30 KTR 125 (Ker.)]. It is submitted that the appeal

may be directed to be disposed of by the Tribunal and till such time, any amount

payable in terms of Ext.P1, which is modified in Ext.P2, may be kept in abeyance.

3. Learned Senior Government Pleader would submit that the question as to

whether the petitioner is actually entitled to the benefit of the findings in Saji Thomas

(Supra) is a matter to be decided on the case to case basis and the question is to be

adjudicated by the fact finding authorities.

4. Having regard to the facts and circumstances of the case and considering the

fact that Ext.P3 appeal filed by the petitioner is pending consideration before the 1 st

respondent Tribunal, this writ petition is disposed of, directing the 1 st respondent-

Tribunal to consider and pass orders on Ext.P3 appeal, after affording an opportunity of

hearing to the petitioner, within a period of three months from the date of receipt of a

certified copy of this judgment. Till such time orders are passed on the appeal, the

recovery proceedings initiated against the petitioner (Ext.P6) shall be kept in abeyance.

It is made clear that I have not expressed any opinion on the merits of the matter and it

is for the Tribunal to decide the question as to whether the petitioner is entitled to the

benefit of the findings in Saji Thomas (supra).

The writ petition is disposed of, as above.

Sd/-

GOPINATH P.

JUDGE okb/ //True copy// P.S. to Judge

APPENDIX OF WP(C) 25715/2022

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF BEST JUDGMENT ASSESSMENT ORDER DATED 26-02-19 PASSED U/S 25 (1) OF THE KVAT ACT FOR THE YEAR 2015-16 BY 2ND RESPONDENT.

Exhibit-P2 TRUE COPY OF COMMON 1ST APPELLATE ORDER DATED 08-02-21 PASSED BY 1ST APPELLATE AUTHORITY FOR THE YEARS 2014-15, 2015-16 & 2016-17 DIRECTING TO MODIFY ASSESSMENT FOR THE YEAR 2015-16.

Exhibit-P3 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM 31 DATED 22-09-21 FOR THE YEAR 2015-16 FILED ON 06-10-21 BEFORE THE 1ST RESPONDENT.

Exhibit-P4 TRUE COPY OF PETITION FOR CONDONATION OF DELAY FILED ALONG WITH EXBT-P3 APPEAL DATED 5-10-21 FOR THE YEAR 2015-16 BEFORE THE 1ST RESPONDENT.

Exhibit-P5 TRUE COPY OF THE PETITION FOR ABSOLUTE STAY FILED ALONG WITH EXBT-P3 APPEAL DATED 05-10- 21 FOR THE YEAR 2015-16 BEFORE THE 1ST RESPONDENT.

Exhibit-P6 TRUE COPY OF NOTICE NO.D1-12566/ 2016 DATED 29-06-22 ISSUED BY 3RD RESPONDENT TO THE PETITIONER.