Faisal A vs State Of Kerala And
2022 Latest Caselaw 8189 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. 30086 OF 2018
PETITIONER:

          FAISAL A.
          AGED 40 YEARS
          S/O.SYIDALAVI, PROPRIETOR FLOWMATE PAINTS
          AND SANITARY , KPH TOWER, 340 ZI, MANNARKKAD
          ROAD, ALANALLUR, PALAKKAD DISTRICT, PIN-678
          601.
          BY ADVS.
          JACOB SEBASTIAN
          K.V.WINSTON
          ANU JACOB

RESPONDENTS:

    1     STATE OF KERALA AND
          BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
          TAXES, SECRETARIAT, TRIVANDRUM-695001.
    2     STATE TAX OFFICER,
          STATE GST DEPARTMENT,
          MANNARKKAD 678 582
    3     THE COMMISSIONER,
          STATE GOODS AND SERVICE TAX DEPARTMENT,
          THIRUVANANTHAPURAM 695 001.
    4     CENTRAL BOARD OF EXCISE AND CUSTOMS
          DEPARTMENT OF REVENUE,
          MINISTRY OF FINANCE, GOVERNMENT OF INDIA,
          NEW DELHI 110 001.
          BY ADV SMT.SHEELA DEVI.I., SC, CENTRAL BOARD
          OF EXCISE AND CUSTOMS
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.30086 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tax was implemented or until the amendment was repealed by a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.P2 and P5 order under Sec.25(1) of the KVAT Act, 2003 for

the assessment year 2012-13, passed by the second 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.30086 OF 2018

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relief against the said challenge.

4. However, as far as Ext.P1 order passed by the

second respondent is considered, 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, shall 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. 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 second respondent shall

not take any coercive steps to recover the amount covered by W.P.(C)No.30086 OF 2018

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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 this writ petition, before the second respondent.

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE MBS/ W.P.(C)No.30086 OF 2018

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APPENDIX OF WP(C) 30086/2018

PETITIONER'S EXHIBITS:-

EXHIBIT P1 A TRUE COPY OF THE ORDER DATED AUGUST 29,2018 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF THE KVAT ACT.