Lalitha vs The State Tax Officer -11
2022 Latest Caselaw 8173 Ker

       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
   THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                 WP(C) NO. 42344 OF 2018
PETITIONER:

          LALITHA,
          AGED 53 YEARS,
          D/O.K.SREEDHARAN PILLAI, SOUTH STAR
          HATCHERIES, BHARANIKKAVU P.O.,
          SASTHAMCOTTAH, KOLLAM-690 520.
          BY ADVS.
          P.B.SAHASRANAMAN
          T.S.HARIKUMAR
          K.JAGADEESH

RESPONDENTS:

   1      THE STATE TAX OFFICER -11
          KARUNAGAPPALLY, KOLLAM-690 518.
   2      THE COMMISSIONER, STATE GOODS AND SERVICE
          TAX DEPARTMENT,
          THIRUVANANTHAPURAM-695 001.
   3      SECREARY, TAXES DEPARTMENT,
          GOVERNMENT OF KERALA, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.
   4      CENTRAL BOARD OF EXCISE AND CUSTOMS,
          DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,
          GOVERNMENT OF INDIA, NEW DELHI-110 001.
OTHER PRESENT:

          SMT. RESMITHA R. CHANDRAN - GP


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C)No.42344 OF 2018

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                           JUDGMENT

The writ petition is filed by the petitioner challenging

101st Constitutional Amendment of the Kerala State Goods and

Services Tax Act, 2017 stating that the provisions of the Kerala

Value Added Tax Act,2003 can be enforced only until the expiry of

one year from the date on which the nationwide goods and service

tax was implemented or until the amendment was repealed by a

competent Legislature and the petitioner further challenges Ext.P1

order under Sec.25(1) of the KVAT Act, 2003 for the assessment

year 2015-16, passed by the first respondent stating that it is

unconstitutional as it is ultra vires of the Constitution of India.

2. Heard the learned counsel for the petitioner and

the learned Government Pleader.

3. The aforesaid challenge of 101st Constitutional

Amendment of the Kerala State Goods and Services Tax Act, 2017

has been considered in Sheen Golden Jewels (India) Pvt.Ltd. v.

State Tax Officer (IB)-1, Investigation Branch,

Thiruvananthapuram and others [2019 KHC 205] and decided

against the petitioner. Hence, in view of the judgment in Sheen

Golden Jewels (Supra), the petitioner is not entitled to get any W.P.(C)No.42344 OF 2018

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relief against the said challenge.

4. However, as far as Ext.P1 order passed by the first

respondent is concerned, the petitioner has to avail the remedy of

appeal before the appellate authority and I am of the opinion that,

the writ petition can be disposed of directing the petitioner to

approach the statutory authority by way of appeal.

5. Hence, the writ petition is disposed of as follows:

The petitioner, if so advised, may file an appeal along

with petition for condonation of delay and petition for stay within a

period of one month from the date of receipt of a copy of this

judgment before the competent appellate authority. If the petitioner

files appeal and petitions as above, the appellate authority shall

consider and pass orders on the petition for condonation of delay

as well as the petition for stay, within a period of one month

thereafter, after affording an opportunity of hearing to the

petitioner. The appellate authority shall take a lenient view while

considering the petition for condonation of delay, taking into

account the pendency of the writ petition before this Court and

pass appropriate orders so that the statutory remedy of appeal is

not lost to the petitioner. The respondents shall not take any W.P.(C)No.42344 OF 2018

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coercive steps to recover the amount covered by Ext.P1 for a

period of two months from the date of receipt of a copy of this

judgment. In case of failure by the petitioner to comply with the

directions as above in filing the appeal and petitions, the stay of

recovery of Ext.P1 granted shall stand vacated. The petitioner

shall produce a copy of this judgment along with a copy of this writ

petition, before the competent authority.

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE MBS/ W.P.(C)No.42344 OF 2018

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APPENDIX OF WP(C) 42344/2018

PETITIONER'S EXHIBITS:-

EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE ASSESSMENT ORDER OF THE PETITIONER VIDE ORDER NO.32020971748/2015-16 DATED 31.10.2018.

EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 04.04.2018 IN WP(C)NO.11335 OF 2018.