Lakshmi Narasimha Textles vs The Commissioner Of Commercial ...
2022 Latest Caselaw 8174 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. 26354 OF 2018
PETITIONER:

          LAKSHMI NARASIMHA TEXTLES
          MISAB COMPLEX, POST OFFICE ROAD,
          MANANTHAVADY,WAYANAD-670645.REPRESENTED BY
          ITS PROPRIETOR G.RAMAKRISHNAVEL.
          BY ADVS.
          SRI.C.S.ARUN SHANKAR
          SRI.T.G.MADHAVANUNNI
          SRI.S.SHYAM KUMAR

RESPONDENTS:

   1      THE COMMISSIONER OF COMMERCIAL TAXES
          THIRUVANANTHAPURAM-695033.
   2      THE STATE TAX OFFICER
          MANANTHAVADY, WAYANAD-6570645.
   3      CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS,
          DEPARTMENT OF REVENUE, MINISTRY OF
          FINANCE,UNION OF INDIA, NEW DELHI-110001.
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.26354 OF 2018

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                          JUDGMENT

The writ petition is filed by the petitioner challenging 101 st

Constitutional Amendment of the Kerala State Goods and Services

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

Added Tax Act, 2003 (for short, "the KVAT Act") 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amendment was repealed by a competent legislature and the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

second 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 W.P.(C)No.26354 OF 2018

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Golden Jewels (supra), the petitioner is not entitled to get any

relief against the said challenge.

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

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 authorities by way of appeal.

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 before the

competent appellate authority, within a period of one month from

the date of receipt of a copy of this judgment. 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 W.P.(C)No.26354 OF 2018

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not lost to the petitioner. No coercive steps shall be taken 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.26354 OF 2018

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APPENDIX OF WP(C) 26354/2018

PETITIONER EXHIBITS EXHIBIT-P1: TRUE COPY OF THE ASSESSMENT ORDER DATED 30.04.2018 ISSUED U/S.25(1) O THE KVAT ACT, 2003 BY THE 2ND RESPONDENT FOR THE YEAR 2015-16.

EXHIBIT-P2: TRUE COPY OF THE ORDER DATED 04.04.2018 OF THE HON'BLE HIGH COURT IN W.P.(C) NO.11335 OF 2018.