Kerala High Court
Pappachan Chakkiath vs Assistant Commissioner on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
WP(C) NO. 816 OF 2023
PETITIONER:
1 PAPPACHAN CHAKKIATH
S/O.KOCHAPPU
AGED 68 YEARS
ALPHONSA MEMORIAL PRESS,
XIV/212, 213, 214, VARAPUZHA,
VARAPUZHA P.O.ERNAKULAM DISTRICT,
KERALA, PIN - 683517
BY ADVS.
YASH THOMAS MANNULLY
SOMAN P.PAUL
RESPONDENTS:
1 ASSISTANT COMMISSIONER
CTO NORTH PARAVUR,
OFFICE OF THE ASSISTANT COMMISSIONER,
STATE GOODS AND SERVICE TAX DEPARTMENT - KERALA
NORTH PARAVUR, PIN - 683513
2 THE JOINT COMMISSIONER OF STATE TAX
SGST DEPARTMENT MATTANCHERRY
KOCHI, PIN - 682002
3 THE DEPUTY COMMISSIONER OF STATE TAX
SGST DEPARTMENT MATTANCHERRY
KOCHI, PIN - 682002
ADV. THUSHARA JAMES, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.816 of 2023
2
C.R.
JUDGMENT
Dated this the 11th day of January, 2023
The petitioner has approached this Court
challenging Ext.P4 order issued by the 1st respondent
under Section 73 of the CGST/SGST Acts imposing on
the petitioner a total liability of Rs.9,70,596/- towards
CGST and SGST payable by the petitioner for the
period from July 2017 to March 2018.
2. Learned counsel appearing for the petitioner
would submit that the entire proceedings culminating
in Ext.P4 order are without jurisdiction and therefore,
notwithstanding the availability of any alternate
remedy, the petitioner is entitled to challenge Ext.P4
by invoking the writ jurisdiction of this Court under
Article 226 of the Constitution of India. It is submitted
that the period for which the liability was imposed on
the petitioner is in respect of the financial year 2017-
18. It is submitted that under sub-section (10) of
WPC No.816 of 2023
Section 73 of the CGST/SGST Acts, the time limit for
completion of proceedings is three years from the due
date for furnishing of annual return for the financial
year to which the tax not paid or short paid or input
tax credit wrongly availed or utilised, relates. It is
submitted that by virtue of Ext.P6 notification issued
under the provisions of Section 168A of the CGST Act,
the time limit for issuance of an order for the financial
year 2017-18 has been extended upto 30.09.2023. It
is submitted that the terms of Ext.P6 notification
relate only to the issuance of order and therefore,
unless the show cause notice was issued within the
time specified in sub-section (2) of Section 73 read
with provisions of sub-section (10) of Section 73, the
entire proceedings have to be declared as one without
jurisdiction. In other words, it is the contention of the
learned counsel appearing for the petitioner that only
the time limit for issuance of order has been extended
and the time limit for issuance of a show cause notice
WPC No.816 of 2023
has not been extended.
3. The learned Senior Government Pleader
appearing for the State contends that when the time
limit for issuance of an order under sub-section(10) of
Section 73 stands extended, automatically the time
limit for issuance of a show cause notice under sub-
section(2) of Section 73 also stands extended.
4. Learned counsel appearing for the petitioner,
in reply, would contend that a notification under
Section 168A can be issued only in extraordinary
circumstances and since the notification only extends
the time limit for issuance of the order and does not
specify that the time limit for issuance of show cause
notice has also been extended, it must be held that
the time limit for issuance of show cause notice has
not been extended. The Hon'ble Supreme Court has
in Commissioner of Customs (Import), Mumbai
v. M/s.Dilip Kumar and Company and others
[(2018) IX SCC 1], held that when there is
WPC No.816 of 2023
ambiguity in the provisions of a taxing statute, the
law must be interpreted in favour of the assessee and
against the revenue.
5. I have considered the contentions raised. The
contention raised on behalf of the petitioner must
necessarily fail on a proper interpretation of Section
73 of the CGST/SGST Acts. Sub-sections (1) and (2)
of Section 73 read as under:-
"73. (1) Where it appears to the proper
officer that any tax has not been paid or short
paid or erroneously refunded, or where input tax
credit has been wrongly availed or utilised for
any reason, other than the reason of fraud or
any wilful-misstatement or suppression of facts
to evade tax, he shall serve notice on the person
chargeable with tax which has not been so paid
or which has been so short paid or to whom the
refund has erroneously been made, or who has
wrongly availed or utilised input tax credit,
requiring him to show cause as to why he should
not pay the amount specified in the notice along
with interest payable thereon under section 50
and a penalty leviable under the provisions of
this Act or the rules made thereunder.
WPC No.816 of 2023
(2) The proper officer shall issue the notice
under sub-section (1) at least three months prior
to the time limit specified in sub-section (10) for
issuance of order."
It is clear from a reading of sub-section(2) of
Section 73 that, the show cause notice to be issued
under sub-section(1) of Section 73 has to be issued
at least three months prior to the time limit specified
in sub-section(10) for issuance of order. When the
time limit for issuance order under sub-section(10) of
Section 73 for the financial year 2017-18 has been
extended upto 30.09.2023, the only interpretation
that can be placed on the provisions of sub-section(2)
of Section 73 is that, the show cause notice can also
be issued with reference to the date 30.09.2023 and
not with reference to any other date. There is
absolutely no ambiguity in the provisions requiring
this Court to apply any rule of interpretation in favour
of the assessee. In Commissioner of Customs
(Import), Mumbai (supra) it was held as follows:
WPC No.816 of 2023
"25. At the outset, we must clarify the
position of "plain meaning rule or clear and
unambiguous rule" with respect of tax law. 'The
plain meaning rule" suggests that when the
language in the statute is plain and
unambiguous, the Court has to read and
understand the plain language as such, and
there is no scope for any interpretation. This
salutary maxim flows from the phrase 'cum
inverbis nulla ambiguitas est, non debet admitti
voluntatis quaestio'."
6. Therefore, I am of the view that the petitioner
has not made out any case for interference under
Article 226 of the Constitution of India as I cannot
find that the impugned orders are issued without
jurisdiction. The writ petition fails. It is accordingly
dismissed.
Faced with this situation, the learned counsel for
the petitioner states that the petitioner's remedy of
filing an appeal against Ext.P4 order expires today
and considering the fact that the petitioner had
approached this Court by filing the above writ
WPC No.816 of 2023
petition, the time for filing the appeal may be
extended by a period of two weeks from today. I
consider this request reasonable and therefore, it is
directed that the petitioner will be permitted to file
the appeal against Ext.P4 order within a period of two
weeks from today. If such appeal is filed within the
aforesaid period of two weeks, the same shall be
treated as one filed in time and the appellate
authority shall consider the appeal on merits.
Sd/-
GOPINATH P.
JUDGE
SKP/11-01
WPC No.816 of 2023
APPENDIX OF WP(C) 816/2023
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SHOW CAUSE NOTICE DATED 16-08-2022
EXHIBIT P2 TRUE COPY OF PROCEEDINGS NUMBERED
32ACYPC0739L1ZD/2017-18 DATED 16-08-2022 OF
RESPONDENT NO.1
EXHIBIT P3 TRUE COPY OF REPLY AFFIDAVIT DATED 13-09-2022
FILED BY THE PETITIONER BEFORE RESPONDENT NO.1
EXHIBIT P4 TRUE COPY OF ORDER DATED 11-10-2022 ISSUED BY
RESPONDENT NO.1
EXHIBIT P5 TRUE COPY OF PROCEEDINGS IN ORDER NO.
32ACYPC0739L1ZD/2017-18 DATED 11-10-2022
EXHIBIT P6 TRUE COPY OF NOTIFICATION DATED 05-07-2022
NUMBERED 13/2022 - CENTRAL TAX
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
