Arun Excello Construction Llp vs The State Tax Officer(Works ...
2022 Latest Caselaw 8185 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. 38206 OF 2018
PETITIONER:

          ARUN EXCELLO CONSTRUCTION LLP
          MUHAMMA, ALAPPUZHA, PIN-688501, REPRESENTED
          BY ITS AUTHORISED SIGNATORY ANEESH M.K.
          BY ADVS.
          S.ANIL KUMAR (TRIVANDRUM)
          SRI.M.RAJAGOPAL

RESPONDENTS:

   1      THE STATE TAX OFFICER(WORKS CONTRACTOR)
          SGST DEPARTMENT, ALAPPUZHA- 688 501.
   2      THE STATE OF KERALA,
          REPRESENTED BY THE PRINCIPAL SECRETARY TO
          GOVERNMENT,TAXES DEPARTMENT,GOVERNMENT
          SECRETARIAT,THIRUVANANTHAPURAM-695001.
   3      UNION OF INDIA,
          REPRESENTED BY ITS SECRETARY,DEPARTMENT OF
          REVENUE, MINISTRY OF FINANCE,ROOM NO
          46,NORTH BLOCK,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.38206 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tax was implemented or until the amendment was repealed by a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

Exts.P1 and P1(a) to (c) orders under Sec.25(1) of the KVAT Act,

2003 for the assessment years 2012-13, 2013-14, 2014-15 and

2016-17 respectively 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 W.P.(C)No.38206 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 Exts.P1 and P1(a) to (c) orders

passed by the first respondent are 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:

1. 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.

2. If the petitioner files appeal and petitons 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.

3. The appellate authority shall take a lenient view while

considering the petition for condonation of delay, taking into W.P.(C)No.38206 OF 2018

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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.

4. The respondents shall not take any coercive step to

recover the amount covered by Exts.P1 and P1(a) to (c)

orders 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.P1 and P1(a) to (c) orders 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.38206 OF 2018

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APPENDIX OF WP(C) 38206/2018

PETITIONER EXHIBITS EXHIBIT P1 COPY OF ORDER DATED 10.5.2018 ISSUED BY THE 1ST RESPONDENT U/S 25(1) FOR THE YEAR 2012-13.

EXHIBIT P1(a) COPY OF ORDER DATED 10.5.2018 ISSUED BY THE 1ST RESPONDENT U/S 25(1) FOR THE YEAR 2013-14.

EXHIBIT P1(b) COPY OF ORDER DATED 10.5.2018 ISSUED BY THE 1ST RESPONDENT U/S 25(1) FOR THE YEAR 2014-15.

EXHIBIT P1(c) COPY OF ORDER DATED 10.5.2018 ISSUED BY THE 1ST RESPONDENT U/S 25(1) FOR THE YEAR 2016-17.

EXHIBIT P2 COPY OF INTERIM ORDER DATED 13.4.2018 ISSUED BY THIS COURT IN WPC NO 13552 OF 2018