Kerala High Court
Rani Tomy vs The Assistant Commissioner on 20 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(C) NO. 15332 OF 2022
PETITIONER:
RANI TOMY
AGED 52 YEARS
W/O. TOMY SEBASTIAN, PROPRIETOR, M/S DEVAMATHA TRADERS,
MOOLAMATTOM, IDUKKI - 685589.
BY ADVS.
G.HARIHARAN
PRAVEEN.H.
K.S.SMITHA
T.T.SHANIBA
M.V.VIPINDAS
AMAL DEV D
SISIRA M.SHIRINE
RESPONDENTS:
1 THE ASSISTANT COMMISSIONER
STATE GOODS AND SERVICES TAX DEPARTMENT, 2ND CIRCLE,
THODUPUZHA, IDUKKI - 685581.
2 THE DEPUTY COMMISSIONER OF STATE TAX & AUTHORISED
OFFICER UNDER THE RR ACT
STATE GOODS AND SERVICES TAX DEPARTMENT, IDUKKI AT
KATTAPPANA - 685515.
OTHER PRESENT:
SMT.M.M.JASMINE -GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 15332 OF 2022
2
BECHU KURIAN THOMAS, J.
===========================
W.P.(C) No.15332 of 2022
============================
Dated this the 20th day of May, 2022
JUDGMENT
Aggrieved by an order of assessment dated 20.02.2018,
petitioner preferred an application for rectification under Section 66
of the KVAT Act. However, by the impugned order dated
31.03.2022, the rectification petition has been rejected.
2. The petitioner assails the order declining rectification and
points out that the only reason mentioned is that the petitioner had
an effective remedy in the form of an appeal.
3. Sri.Praveen Hariharan, the learned counsel for the
petitioner contended that the reason for rejection of the rectification
petition is not legally tenable and that the 1st respondent has
committed material irregularity in issuing an order, which is perverse
in nature also.
4. I have heard Shri.Praveen Hariharan, the learned counsel
WP(C) NO. 15332 OF 2022
for the petitioner as well as Smt.M.M.Jasmin, the learned
Government Pleader.
5. On an appreciation of the contentions raised as well as
on a perusal of the pleadings and the impugned order, I find that
the learned counsel for the petitioner is justified in the submission
that the sole reason for declining to exercise the jurisdiction under
Section 66 of the KVAT Act is the alleged availability of remedy in
the form of an appeal.
6. The existence of a remedy in the form of an appeal is
dehors the provisions under Section 66 of the KVAT Act. Merely
because the assessee has a right by way of an appeal, the same
does not bar the exercise of jurisdiction under Section 66, as the
statute provides such an enabling provision.
7. In view of the above, the reason mentioned in Ext.P1 is
perverse, warranting interference under Article 226 of the
Constitution of India.
8. Accordingly, I set aside Ext.P1 and direct the 1 st
respondent to consider and pass appropriate orders on the
WP(C) NO. 15332 OF 2022
rectification application afresh, after granting an opportunity of
hearing to the petitioner, as expeditiously as possible, at any rate,
within a period of three months from the date of receipt of a copy
of this judgment.
Sd/-
BECHU KURIAN THOMAS
JUDGE
ssa/
WP(C) NO. 15332 OF 2022
APPENDIX OF WP(C) 15332/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO.32061493271/2016 -
17 DATED 31.03.2022 PASSED BY THE 1ST
RESPONDENT.
Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE STATE
TAX OFFICER, 2ND CIRCLE, THODUPUZHA DATED
20.02.2018.
Exhibit P3 TRUE COPY OF THE NOTIFICATION NO.SRO 804/2008
DATED 31.07.2008.
Exhibit P4 TRUE COPY OF THE NOTIFICATION NO.SRO 753/2011
DATED 30.11.2011.
Exhibit P5 TRUE COPY OF THE CLARIFICATION ORDER PASSED
BY THE COMMISSIONER OF COMMERCIAL TAXES VIDE
ORDER NO.CT/815/17-C3 DATED 22.08.2017.
Exhibit P6 TRUE COPY OF THE REVENUE RECOVERY NOTICE
UNDER SECTION 7 OF THE RR ACT DATED
05.02.2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P7 TRUE COPY OF THE RECTIFICATION APPLICATION
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
