Jaya Agencies vs The State Of Kerala
2022 Latest Caselaw 8183 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. 41307 OF 2018
PETITIONER:

         JAYA AGENCIES
         REPRESENTED BY THE SOLE PROPRIETOR,
         C.THANKARAJ,
         AGED 54, S/O. CHELLANKKANNU NADAR,
         TC 11/1172, WATTS LANE, NANDHANCODE-695 508
         BY ADV BIJU .C. ABRAHAM

RESPONDENTS:

   1     THE STATE OF KERALA
         REPRESENTED BY THE SECRETARY (TAXES) ,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHPAURAM-695 001
   2     THE COMMISISONER OF KERALA STATE GST,
         KERALA STATE GST DEPARTMENT, TAX TOWER,
         KILLIPALAM,
         KARAMANAP.O.,
         THIRUVANANTHPAURAM-695 002
   3     THE COMMERCIAL TAX OFFICER,
         II CIRCLE, TAX TOWER, KARMANA,
         THIRUVANANTHAPURAM-695 002
   4     GOODS AND SERVICE TAX COUNCIL,
         GOVERNMENT OF INDIA, OFFICE OF THE GST
         COUNCIL SECRETARIAT, 5TH FLOOR, TOWER II,
         JEEVAN BHARTI BUILDING, JANPATH ROAD,
         CONNAUGHT PALACE, NEW DELHI-110001,
         REPRESENTED BY ITS ADDITIONAL SECRETARY
   5     THE DY.TAHSILDAR,
         THIRUVANANTHAPURAM TALUK,
         THIRUVANANTHAPURAM-695 001
OTHER PRESENT:

         SMT. RESMITHA R. CHANDRAN - GP
 W.P.(C)No.41307 OF 2018

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       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.41307 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 (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amendment was repealed by a competent legislature and the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 to P3 orders under Sec.25(1)

of the KVAT Act, 2003 for the assessment years 2012-13, 2013-14

and 2014-15 passed by the third 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 W.P.(C)No.41307 OF 2018

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

relief against the said challenge.

4. Counsel for the petitioner submits that as against

Ext.P1 order, the petitioner has already filed statutory appeal. In

respect of Exts.P2 and P3 orders, the petitioner seeks time to file

appeals before the statutory authority. Considering the facts and

circumstances, I am of the opinion that, the writ petition can be

disposed of as follows:

1. The petitioner is directed to file appeals against Exts.P2 and

P3 orders, 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 .

2. 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.

3. 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 W.P.(C)No.41307 OF 2018

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and pass appropriate orders so that the statutory remedy of

appeal is not lost to the petitioner.

4. The third respondent shall not take any coercive steps

to recover the amount covered by Exts.P2 and P3 for a

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

this judgment.

5. 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 Exts.P2 and P3 granted, shall stand

vacated.

The writ petition is disposed of as above.

Sd/-

                                          SHOBA ANNAMMA EAPEN,
MBS/                                              JUDGE
 W.P.(C)No.41307 OF 2018

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                 APPENDIX OF WP(C) 41307/2018

PETITIONER'S EXHIBITS:-
EXHIBIT P1     TRUE COPY OF MODIFIED ASSESSMENT
               ORDER DATED 28/9/2017 FOR THE YEAR
               2012-13

EXHIBIT P1(a) TRUE COPY OF THE NOTICE OF DEMAND DATED 28/9/2017 FOR THE YEAR 2012-13 EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 18/9/2017 FOR THE YEAR 2013-14 EXHIBIT P2(a) TRUE COPY OF THE NOTICE OF DEMAND DATED 18/9/2017 FOR THE YEAR 2013-14 EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER DATED 18/9/2017 FOR THE YEAR 2014-15