Kerala High Court
K.J. Jagath Simhan vs The State Tax Officer on 24 March, 2023
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.
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
WA NO. 554 OF 2023
AGAINST THE ORDER/JUDGMENT WP(C) 3371/2023 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
K.J. JAGATH SIMHAN, AGED 32 YEARS
PROPRIETOR, M/S. KONDAPURAM KALATHIL GAS AGENCIES,
MELAMURI, PALAKKAD, PIN - 678006
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
R.SREEJITH
K.KRISHNA
RESPONDENT/S:
1 THE STATE TAX OFFICER
STATE GOODS AND SERVICE TAX DEPARTMENT, 1ST CIRCLE,
PALAKKAD, PIN - 678001
2 THE DEPUTY COMMISSIONER (APPEALS)
STATE GOODS & SERVICES TAX DEPARTMENT, PALAKKAD,
PIN - 678001
3 THE DEPUTY TAHSILDAR , REVENUE RECOVERY
TALUK OFFICE, PALAKKAD, PIN - 678001
4 THE COMMISSIONER OF STATE GST
STATE GOODS AND SERVICE TAX DEPARTMENT, TAX TOWERS,
KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM, PIN - 695001
5 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
TAXES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
SMT. M M. JASMINE, GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023,
ALONG WITH WA.548/2023, 556/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA.Nos.548, 554 & 556 of 2023 2
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.
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
WA NO. 548 OF 2023
AGAINST THE ORDER/JUDGMENT WP(C) 3330/2023 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER :
K.J. JAGATH SIMHAN, AGED 32 YEARS
PROPRIETOR, M/S. KONDAPURAM KALATHIL GAS AGENCIES,
MELAMURI, PALAKKAD, PIN - 678006
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
R.SREEJITH
K.KRISHNA
RESPONDENT/S:
1 THE STATE TAX OFFICER, STATE GOODS AND SERVICE TAX
DEPARTMENT, 1ST CIRCLE, PALAKKAD, PIN - 678001
2 THE DEPUTY COMMISSIONER (APPEALS)
STATE GOODS & SERVICES TAX DEPARTMENT, PALAKKAD,
PIN - 678001
3 THE DEPUTY TAHSILDAR , REVENUE RECOVERY
TALUK OFFICE, PALAKKAD, PIN - 678001
4 THE COMMISSIONER OF STATE GST, STATE GOODS AND SERVICE
TAX DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM, PIN - 695001
5 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
BY ADV. M M. JASMINE, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023,
ALONG WITH WA.554/2023 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA.Nos.548, 554 & 556 of 2023 3
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.
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
WA NO. 556 OF 2023
AGAINST THE ORDER/JUDGMENTWP(C) 3307/2023 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
K.J. JAGATH SIMHAN, AGED 32 YEARS
PROPRIETOR, M/S. KONDAPURAM KALATHIL GAS AGENCIES,
MELAMURI, PALAKKAD, PIN - 678006
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
R.SREEJITH
K.KRISHNA
RESPONDENT/RESPONDENTS:
1 THE STATE TAX OFFICER, STATE GOODS AND SERVICE TAX
DEPARTMENT, 1ST CIRCLE, PALAKKAD, PIN - 678001
2 THE DEPUTY COMMISSIONER (APPEALS), STATE GOODS &
SERVICES TAX DEPARTMENT, PALAKKAD, PIN - 678001
3 THE DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE,
PALAKKAD, PIN - 678001
4 THE COMMISSIONER OF STATE GST, STATE GOODS AND SERVICE
TAX DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM, PIN - 695001
5 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
SMT. M M. JASMINE, GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023,
ALONG WITH WA.554/2023 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA.Nos.548, 554 & 556 of 2023 4
JUDGMENT
A.K.JAYASANKARAN NAMBIAR, J.
These Writ Appeals impugn the common judgment dated
06.02.2023 of the learned Single Judge. The learned Single Judge
dismissed the three writ petitions, following the judgment of the Division
Bench of this Court in Writ Appeal No.1035 of 2019 and connected
matters.
2. The learned Single Judge, while dismissing the writ petitions,
noted that although a Special Leave Petition had been preferred before
the Supreme Court, the Court while admitting the said Special Leave
Petition against the judgment of the Division Bench of this Court, did not
stay the operation of the judgment. It is under those circumstances that
the learned Single Judge also dismissed the writ petitions.
3. When these Writ Appeals came up for admission before us,
we informed the learned counsel appearing for the appellant that, in view
of the fact that the Supreme Court had not granted a stay of operation of
the judgment of the Division Bench of this Court, we would be constrained
to follow the said judgment and hence the decision in these Writ Appeals
would be no different from the decision taken by the learned Single Judge
in the writ petitions. At that stage, the learned counsel for the
appellant in these Writ Appeals pointed out that the writ petitions
essentially challenged the power of the State Government to reopen an
assessment, after the coming into force of the GST regime and the
cessation of the erstwhile KVAT regime in the State. The challenge to the
assessment orders in the writ petitions were only incidental. It is pointed
out that while appeals had been preferred against the said assessment
orders, the First Appellate Authority had dismissed the appeals preferred
against the assessment orders solely on the ground that the required
amounts towards the Kerala Legal Benefit Fund had not been paid by the
appellant as a pre-condition for maintaining the appeals before the First
Appellate Authority. The learned counsel prays that in the event of not
interfering with the judgment of the learned Single Judge impugned in
these Writ Appeals, he may be permitted to remit the required amounts
towards the Kerala Legal Benefit Fund for the purposes of maintaining the
appeals before the First Appellate Authority, thereby curing the defects
noticed by the said Authority in Ext.P2 order produced along with the writ
petitions. That would then enable the First Appellate Authority toi
consider the matter on merits.
4. On a consideration of the said request of the learned counsel
appearing for the appellant, we find that no prejudice will be caused to the
revenue by directing the First Appellate Authority to consider the appeals
preferred by the appellant in these Writ Appeals, on merits.
Accordingly, while upholding the judgment of the learned Single
Judge impugned in the writ appeals to the extent it finds against the
appellant on the issue of power of the State Government to reopen an
assessment subsequent to the Constitution Amendment (101 st Amendment
Act), we dispose these Writ Appeals by directing the First Appellate
Authority (the 2nd respondent) in these Writ Appeals to entertain the
appeals preferred by the appellant against the orders of assessment, that
were impugned in the writ petitions, after collecting the amounts due
towards the Kerala Legal Benefit Fund. If the appellant cures the defect
in relation to the payment of amounts towards the Kerala Legal Benefit
Fund, within a period of three weeks from today, then the Appellate
Authority shall treat the appeals as properly filed and proceed to
adjudicate the same on merits, after hearing the appellant . The Appellate
Authority shall thereafter pass final orders in the appeals, within a period
of three months, from the date of receipt of the amounts towards the
Kerala Legal Benefit Fund.
The Writ Appeals are disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
ajt
