Pappachan Chakkiath vs Assistant Commissioner
2023 Latest Caselaw 2999 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
     THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
   MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                          WA NO. 552 OF 2023
AGAINST THE ORDER/JUDGMENT IN WP(C) 816/2023 OF HIGH COURT OF
                                 KERALA
APPELLANT/PETITIONER:

             PAPPACHAN CHAKKIATH,S/O.KOCHAPPU,
             AGED 68 YEARS
             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

             BY SMT.M.M.JASIME, GP
             SRI.P.R.SREEJITH, SC



     THIS     WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
13.03.2023,     THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
 WA No.552 of 2023
                                      2


   A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
                 ......................................................
                           WA No.552 of 2023
              ................................................................
               Dated this the 13th day of March, 2023


                                JUDGMENT

Mohammed Nias.C.P. J.

The unsuccessful writ petitioner is the appellant before us,

aggrieved by the dismissal of his writ petition filed challenging Ext.P4

order issued by the first respondent under Section 73 of the

CGST/SGST Act imposing on the petitioner a total liability of

Rs.9,70,596/- for the period from July 2017 to March 2018.

2. The learned counsel for the appellant submits that the entire

proceedings culminating in Ext.P4 order are without jurisdiction and

that the period for which the liability was imposed on the petitioner is

in respect of the financial year 2017-2018 and the time period for

completion of proceedings is three years from the due date for

furnishing the annual return for the financial year to which the tax

not paid or short paid or input tax credit wrongly availed or utilised,

relates. Though Ext.P6 notification was issued under the provisions of

Section 168A of the CGST Act, the time period for issuance of an

order for the financial year 2017-2018 has been extended upto WA No.552 of 2023

30.09.2023. The said notification relates only to the issuance of the

order, and unless the show cause notice was issued within the time

specified in sub-section (2) of Section 73 read with the provisions of

sub-section (10) of Section 73, the entire proceedings are without

jurisdiction.

3. The learned single Judge, after consideration, did not accept

the contention of the petitioner that the impugned orders were issued

without jurisdiction, and faced with that situation, the learned

counsel for the writ petitioner sought time for availing the alternate

remedy against Ext.P4 order within a period of two weeks. The

learned single Judge granted the same and further directed the

appeal to be filed within two weeks, which shall be treated as one

filed in time. The appellate authority was directed to consider the

appeal on merits. It is against the said judgment that this appeal is

filed.

4. The learned counsel for the appellant reiterates the

contentions taken in the writ petition before the learned single

Judge. However, we noticed that pursuant to the permission granted

by the learned single Judge, the appellant has already filed a

statutory appeal. As the appellant had sought for availing the

alternate remedy and has, in fact, availed it, we are not inclined to WA No.552 of 2023

admit this writ appeal and hear the contentions of the appellant on

merits. Learned Counsel for the appellant raises an apprehension

that since the writ petition was dismissed, he would be prejudiced in

the appeal before the statutory authority as it will be taken that his

contentions were rejected by this Court. We find the said

apprehension to be without any basis as the learned single Judge has

only considered the contentions and had entered findings only for the

purpose of declining jurisdiction under Article 226 of the Constitution

of India for entertaining the writ petition and nothing more.

We, accordingly, dismiss the writ petition making it clear that it

will be open to the appellant to raise all the contentions against

Ext.P4 notice before the appellate authority, who will consider the

same and pass a speaking order dealing with the contentions of the

petitioner. The petitioner will be free to urge all the contentions

available to him under law before the appellate authority. The

appellate authority will consider the appeal and pass orders without

delay.

Sd/- A.K. JAYASANKARAN NAMBIAR, JUDGE

Sd/- MOHAMMED NIAS C.P., JUDGE

dlk/13.3.2023 WA No.552 of 2023

APPENDIX OF WA 552/2023

PETITIONER'S ANNEXURES

Annexure1 TRUE COPY OF NOTIFICATION NO 35/2020 -

CENTRAL TAX DATED 03-04-2020 Annexure2 TRUE COPY OF NOTIFICATION NO 14/2021 -

CENTRAL TAX DATED 01-05-2021