Cherupushpam Traders vs State Tax Officer
2022 Latest Caselaw 8179 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. 29584 OF 2018
PETITIONER:

          M/S.CHERUPUSHPAM TRADERS
          AGED 46 YEARS
          PADIYOTUCHAL REPRESENTED BY ITS PROPRIETOR
          SRI. T.J. JOSEPH
          BY ADV RAJESH NAMBIAR

RESPONDENTS:

   1      STATE TAX OFFICER
          SGST DEPARTMENT,
          PAYYANNUR, PIN - 676869.
   2      THE COMMISSIONER,
          STATE GOODS AND SERVICE TAX DEPARTMENT,
          THIRUVANANTHAPURAM-695001.
   3      STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY,
          TAXES DEPARTMENT,
          GOVT. SECRETARIAT,
          THIRUVANANTHAPURAM-695001.
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.29584 OF 2018

                                   ..2..




                           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tax was implemented or until the amendment was repealed by a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 2011-12, 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 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 W.P.(C)No.29584 OF 2018

..3..

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 authorities 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 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. The first respondent shall not take any W.P.(C)No.29584 OF 2018

..4..

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 first respondent.

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE MBS/ W.P.(C)No.29584 OF 2018

..5..

APPENDIX OF WP(C) 29584/2018

PETITIONER'S EXHIBITS:-

EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 18.6.2018 FOR THE YEAR 2011-

12 ISSUED UNDER SECTION 25(1) THE KVAT ACT (WITH ENGLISH TRANSLATION OF THE MALAYALAM WORDS).

EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 4.4.18 IN WPC.11335/2018.

EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED 12.4.18 IN WPC.13136/2018.