M/S. Nanma Properties Pvt. ... vs State Of Kerala
2022 Latest Caselaw 8186 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. 25848 OF 2018
PETITIONER:

          M/S. NANMA PROPERTIES PVT. LIMITED
          5B-6, 34/137G, EASTERN CORPORATE
          OFFICE,N.H.BYEPASS ROAD, EDAPALLY-682
          034,REPRESENTED BY ITS MANAGING DIRECTOR
          ASHEEN PANAKKAT.
          BY ADV SRI.JOSE JACOB

RESPONDENTS:

   1      STATE OF KERALA
          REPRESENTED BY THE SECRETARY,TAXES(A)
          DEPARTMENT, GOVERNMENT OF
          KERALA,SECRETARIAT, TRIVANDRUM-695 001.
   2      STATE TAX OFFICER (WORKS CONTRACT)
          OFFICE OF THE DEPUTY COMMISSIONER OF STATE
          TAX,WORKS CONTRACT, DEPARTMENT OF STATE
          GOODS & SERVICES TAX, REVENUE TOWER, 9TH
          FLOOR, ERNAKULAM-682 011.
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.25848 of 2018


                                ..2..



                           JUDGMENT

The writ petition is filed challenging Ext.P4 penalty order

under Section 67 (1) of the Kerala Value Added Tax Act, 2003

(for short, "the KVAT Act") and Exts.P6 and P7 notices issued by

the second respondent under Section 25(1) of the KVAT Act.

The main challenge in this writ petition is against the 101st

Constitutional Amendment of the Kerala State Goods and

Services Tax Act, 2017, stating that the provisions of 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implemented or until the amendment was repealed by a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.

2. Heard the learned counsel for the petitioner and the

learned Government Pleader.

3. The aforesaid issue has been decided against the

petitioner in Sheen Golden Jewels (India) Pvt.Ltd. v. State Tax

Officer (IB)-1, Investigation Branch, Thiruvananthapuram

and others [2019 KHC 205]. Hence, in view of the judgment in

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

get any relief against the said challenge. W.P.(C)No.25848 of 2018

..3..

4. However, as far as Ext.P4 order passed by the

Intelligence Officer is concerned, it is a penalty order under

Section 67 (1) of the KVAT Act,2003. The petitioner has to avail

the remedy of appeal/revision before the competent authority.

Similarly, Exts.P6 and P7 are notices issued by the second

respondent Section 25(1) read with Sec.42(3) of the KVAT Act,

2003. The petitioner may have to file objections to the said

notices before the second respondent. I am of the opinion that

the writ petition can be disposed of as follows:-

The petitioner, if so advised, may file an

appeal/revision 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/revision as above, the

competent 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 competent authority

shall take a lenient view while considering the petition for

condonation of delay, taking into account the pendency of the W.P.(C)No.25848 of 2018

..4..

writ petition before this Court and pass appropriate orders so that

the statutory remedy of appeal/revision is not lost to the

petitioner.

5. No coercive steps shall be taken to recover the

amount covered by Ext.P4 for a period of two months from the

date of receipt of a copy of the judgment. If the petitioner fails to

comply with the directions as above in filing the appeal and

petitions, then, the stay of recovery of Ext.P4 granted shall stand

vacated.

6. The petitioner, if so advised, may file reply, if any, to

Exts.P6 and P7 notices with all supporting documents before the

second respondent within a period of one month from the date of

receipt of a copy of this judgment. The second respondent shall

consider the objections on merits and pass appropriate orders, if

not already passed, in accordance with law, after affording an

opportunity of hearing to the petitioner within a period of two

months thereafter. The petitioner shall produce a copy of this

judgment along with a copy of this writ petition, before the

second respondent.

W.P.(C)No.25848 of 2018

..5..

The writ petition is disposed of as above.

Sd/-

                                SHOBA ANNAMMA EAPEN,
MBS/                                  JUDGE
 W.P.(C)No.25848 of 2018


                             ..6..



                 APPENDIX OF WP(C) 25848/2018

PETITIONER'S EXHIBITS
EXHIBIT P1:      TRUE COPY OF THE OFFICE INSPECTION
                 REPORT ISSUED BY THE INTELLIGENCE
                 DEPARTMENT.
EXHIBIT P2:      TRUE COPY OF THE NOTICE FOR ISSUED
                 PRODUCTION OF BOOKS OF ACCOUNTS.
EXHIBIT P3:      TRUE COPY OF NOTICES ISSUED UNDER
                 SECTION 67(1) OF THE KAVAT ACT FOR
                 THE YEAR 2015-16 & 2016-17.
EXHIBIT P4:      TRUE COPY OF ORDER ISSUED BY THE
                 INTELLIGENCE DEPARTMENT.
EXHIBIT P5:      TRUE COPY OF NOTICE ISSUED UNDER
                 THE KVAT ACT.
EXHIBIT P6:      TRUE COPY OF NOTICES ISSUED UNDER
                 SECTION 25(1) OF THE KVAT ACT FOR
                 THE YEAR 2014-15.
EXHIBIT P7:      TRUE COPY OF NOTICES ISSUED UNDER
                 SECTION 25(1) OF THE KVAT ACT FOR
                 THE YEAR 2015-16.