M/S. Artech Realtors Private ... vs Joint Commissioner (Appeals)
2023 Latest Caselaw 676 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                        WP(C) NO. 1058 OF 2023
PETITIONER:

          M/S. ARTECH REALTORS PRIVATE LIMITED,
          24/2014 1, ARTECH HOUSE,
          C.V. RAMAN PILLAI ROAD, THYCAUD,
          THIRUVANANTHAPURAM,KERALA - 695 014,
          REP.BY MANAGING DIRECTOR.

          BY ADV MANOJ PILLAI



RESPONDENTS:

    1     JOINT COMMISSIONER (APPEALS),
          STATE G.S.T. DEPARTMENT, 3RD FLOOR,
          TAX TOWERS, KARAMANA . P.O.,
          THIRUVANANTHAPURAM - 695 002.

    2     ASSISTANT COMMISSIONER (WORKS CONTRACT)
          STATE GST DEPARTMENT, THIRUVANANTHAPURAM.

    3     STATE TAX OFFICER,
          SQUAD NO. 4,
          KERALA GOODS AND SERVICE TAX DEPARTMENT,
          NEW PUBLIC OFFICE BUILDING, C-BLOCK,
          2ND FLOOR, THIRUVANANTHAPURAM - 695 001.

          ADV. THUSHARA JAMES (SR GP)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 1058 OF 2023

                                 2


                           JUDGMENT

The petitioner suffered Ext.P9 order under the provisions of

Section 129 of the CGST / SGST Acts. The petitioner preferred an

appeal before the first appellate authority and that appeal was

rejected by Ext.P13 order dated 12.08.2020.

2. The learned counsel appearing for the petitioner

submits that the petitioner wishes to challenge Ext.P13 order by

filing an appeal before the appellate tribunal, which is yet to be

constituted. It is submitted that the petitioner has filed the writ

petition on the apprehension that the bank guarantee furnished by

the petitioner at the time when the original proceedings were

pending before the adjudicating authority may be encashed

causing serious prejudice and hardship to the petitioner.

3. The learned Senior Government Pleader would point

out that while it may be open to the petitioner to still challenge

Ext.P13 order by filing an appeal before the Tribunal as and when

the Tribunal is constituted, the provisions of Section 112(8)(b) of

the CGST / SGST Acts require the petitioner to make a pre-deposit

for maintaining such appeal. It is submitted that while a direction

can be issued that the bank guarantee shall not be presently

invoked, the petitioner may be required to comply with the

condition under Section 112(8)(b) of the CGST / SGST Acts. WP(C) NO. 1058 OF 2023

Having heard the learned counsel for the petitioner and the

learned Senior Government Pleader appearing for the respondents,

I am of the view that this writ petition can be disposed of directing

that if the petitioner pays an amount equivalent to the amount

payable by the petitioner to maintain an appeal before the

appellate tribunal (which is yet to be constituted) in terms of

Section 112(8)(b) of the CGST / SGST Acts, the bank guarantee

furnished by the petitioner shall not be encashed. This shall be

subject to the further condition that the petitioner shall keep alive

the bank guarantee. This order shall be in force till the expiry of

two months after the constitution of the State Appellate Tribunal.

Thereafter the petitioner will be governed by any order that may

be issued by the Tribunal. The amount required to be paid by the

petitioner in terms of Section 112(8)(b) of the CGST / SGST Acts

shall be paid within a period of two weeks from today.

The writ petition will stand disposed of as above.

Sd/-

GOPINATH P.

JUDGE DK WP(C) NO. 1058 OF 2023

APPENDIX OF WP(C) 1058/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 21/09/2017

Exhibit P2 TRUE COPY OF THE TAX LNVOICE DATED 26-01-

Exhibit P3 TRUE COPY OF THE INVOICE RAISED BY BABU SAW MILL DATED 6/3/2018

Exhibit P4 TRUE COPY OF THE DELIVERY NOTE DATED 6/3/2018

Exhibit P5 TRUE COPY OF THE SCN DATED 06-03-2018

Exhibit P6 TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE ASSISTANT STATE TAX OFFICER

Exhibit P7 TRUE COPY OF THE JUDGEMENT OF THE HONOURABLE HIGH COUT OF KERALA IN W.P. (C)NO. 8580/2018 DATED 14/3/2018

Exhibit P8 TRUE COPY OF THE BANK GUARANTEE DATED 23-

03- 2018 FURNISHED BY THE PETITIONER

Exhibit P9 COPY OF THE ORDER PASSED BY THE RESPONDENT NO.3 DATED 17-04-2018

Exhibit P10 TRUE COPY OF THE ORDER PASSED BY THE HONOURABLE HIGH COUT OF KERALA W.P (C). NO.14596 OF 2018(Y) DATED 10/7/2020

Exhibit P11 TRUE COPY OF THE ERROR CODE DISPLAY SCREEN SHOT

Exhibit P12 TRUE COPY OF THE APPEAL FILED BEFORE THE RESPONDENT NO.2 BY THE PETITIONER

Exhibit P13 TRUE COPY OF THE APPELLATE ORDER AND GROUNDS OF DECISION PRONOUNCED BY RESPONDENT NO.1 DATED 16/9/2022