Alexander .P.M vs State Of Kerala
2022 Latest Caselaw 8175 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. 27981 OF 2018
PETITIONER:

          ALEXANDER .P.M
          AGED 50 YEARS,
          S/O.MATHAI, PROPRIETOR, PAVANA INDUSTRIES,
          POONITHURA, ERNAKULAM DISTRICT, PIN-682
          038.
          BY ADV DR. PAULY MATHEW MURICKEN

RESPONDENTS:

   1      STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          STATE GOODS AND SERVICES TAX DEPARTMENT,
          SECRETARIATE, THIRUVANANTHAPURAM-695 001.
   2      THE ASSISTANT COMMISSIONER (WORKS CONTRACT)
          STATE GOODS AND SERVICES TAX DEPARTMENT,
          ERNAKULAM,PIN-682018.



OTHER PRESENT:

          BY 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.27981 of 2018


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                                JUDGMENT

The writ petition is filed challenging Exts.P3, P6 and P10

assessment orders passed by the second respondent under the Kerala

Value Added Tax Act, 2003. The main challenge in this writ petition is

101st Constitutional Amendment of the Kerala State Goods and Services

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

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amendment was repealed by a competent Legislature.

2. Heard the learned counsel for the petitioner and the learned

Government Pleader.

3. The aforesaid challenge of 101 st 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

relief against the said challenge.

4. However, as far as Exts.P3, P6 and P10 assessment orders

passed by the second respondent are concerned, the petitioner has to W.P.(C)No.27981 of 2018

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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 not lost to the petitioner.

No coercive steps shall be taken to recover the amount covered by

Exts.P3, P6 and P10 assessment orders 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, then the stay of recovery of Exts.P3,P6 and P10 granted shall W.P.(C)No.27981 of 2018

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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.27981 of 2018

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APPENDIX OF WP(C) 27981/2018

PETITIONER'S EXHIBITS:-

EXHIBIT P1 A TRUE PHOTOCOPY OF THE NOTICE DATED 07.05.2018 ISSEUD TO THE PETITIONER UNDER SEC.25(1)OF THE KVAT ACT,2003 FOR THE ASSESSMENT YEAR 2011-2012.

EXHIBIT P2 A TRUE PHOTOCOPY OF THE OBJECTIONS DATED 29.05.2018.

EXHIBIT P3 A TRUE PHOTOCOPY OF THE ASSESSMENT ORDER DATED 01.08.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE YEAR 2011-12 EXHIBIT P4 A TRUE PHOTOCOPY OF THE NOTICE DATED 07.05.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE YEAR 2012-13. EXHIBIT P5 A TRUE PHOTOCOPY OF THE OBJECTION DATED 29.05.2018 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P6 A TRUE PHOTOCOPY OF THE ASSESSMENT PROCEEDINGS OF THE 2ND RESPONDENT DATED 08.06.2018 EXHIBIT P7 A TRUE PHOTOCOPY OF THE NOTICE OF DEMAND DATED 18.06.2018 ISSUED BY THE 2ND RESPONDENT FOR THE RETURN PERIOD 2012-13.

EXHIBIT P8 A TRUE PHOTOCOPY OF THE NOTICE 07.05.2018 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FOR THE YEAR 2013-

EXHIBIT P9 A TRUE PHOTOCOPY OF THE OBJECTOINS DATED 29.05.2018 SUBMITTED BY THE PETITIONER EXHIBIT P10 A TRUE PHOTOCOPY OF THE ASSESSMENT PROCEEDINGS DATED 01.08.2018 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2013-

EXHIBIT P11 A TRUE PHOTOCOPY OF THE NOTICE OF DEMAND DATED 18.06.2018 ISSUED BY THE 2ND RESPONDENT W.P.(C)No.27981 of 2018

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EXHIBIT P12 A TRUE PHOTOCOPY OF THE CONSTITUTION (101ST AMENDMENT)ACT,2016.

EXHIBIT P13 A TRUE PHOTOCOPY OF THE NOTIFICATION S.O.2986(E)DATED 16.09.2016 ISSUED BY THE DEPARTMENT OF REVENUE,GOVERNMENT OF INDIA.