Kerala High Court
M/S. Kalyan Tourist Home vs State Of Kerala on 7 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:83093
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
WP(C) NO. 39243 OF 2024
PETITIONER:
M/S. KALYAN TOURIST HOME,
12/843-1, ERUMAKKARA STREET, PALAKKAD,
REPRESENTED BY ITS MANAGING PARTNER AJAYAKUMAR P.,
RESIDING AT 13/D, ELLYZIUM COURT,
ARAVIND GHOSH ROAD, KOZHIKODE, PIN - 673 001.
BY ADVS.
THOMAS ABRAHAM
MERCIAMMA MATHEW
ASWIN.P.JOHN
R.ANANTHAPADMANABAN
PAUL BABY
SWATHY A.P.
THARA ELIZABETH THOMAS
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
2 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY (TAXES),
DEPARTMENT OF TAXES, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM, PIN - 695 001.
3 COMMISSIONER,
KERALA STATE GST DEPARTMENT, 9TH FLOOR, TAX TOWER,
KILLPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM,
PIN - 695 002.
4 JOINT COMMISSIONER OF STATE TAX,
PALAKKAD, STATE GST DEPARTMENT OF KERALA,
1ST FLOOR, STATE GST COMPLEX,
BEHIND CIVIL STATION, PALAKKAD, PIN - 678 001.
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WP(C) 39243/2024 2
5 DISTRICT COLLECTOR,
PALAKKAD DISTRICT, PALAKKAD, CIVIL STATION,
PALAKKAD, PIN - 678 001.
6 TAHSILDAR (REVENUE RECOVERY),
O/O. TAHSILDAR (REVENUE RECOVERY), PALAKKAD,
PIN - 678 001.
7 VILLAGE OFFICER,
PALAKKAD -3 VILLAGE, PUTHUR RD., KOPPAM, PALAKKAD,
KERALA, PIN - 678 001.
BY ADV. JASMIN M M (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C) 39243/2024 3
JUDGMENT
The petitioner has approached this Court seeking the
following reliefs:
i. "call for the records leading to Section 8 of the
Kerala Finance Act 2024 and strike down the
same to the extent the said provision excludes the
petitioner and other FL3 licensees from the
purview of the Amnesty Scheme envisaged under
Chapter-II of Exhibit P2 Act;
ii. issue a writ of mandamus or any other appropriate
writ, order or direction commanding the 1st
respondent to consider and pass orders on
Exhibit-P4 representation after affording an
opportunity of hearing to the petitioner through
his authorized representative, within a time frame
fixed by this Hon'ble Court;
iii. issue a writ of mandamus or any other
appropriate writ, order or direction commanding
the respondents not to take any coercive steps
against the petitioner on the basis of Exhibit-P1 or
steps taken pursuant to the same, pending
disposal of Exhibit-P4 request of the petitioner for
the extension of the benefit of the Amnesty
Scheme envisaged under Exhibits P2 and P3;
iv. issue a writ of mandamus or any other appropriate
writ, order or direction commanding the
respondents 3 to 7 to initiate any recovery
proceedings against the petitioner only after
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correctly quantify the Sales Tax Arrears and after
deducting the amounts paid by the petitioner and
also to maintain absolute transparency in the
process of reckoning of the arrears;
v. petitioner humbly prays that this Hon'ble Court
may be pleased to dispense with the translation of
documents in the vernacular;
and
vi. grant such other and further reliefs as deemed by
this Hon'ble Court fit and proper to grant in the
facts and circumstances of this case.
2. It is the case of the petitioner that after the issuance
of Ext.P1 revenue recovery notice, several amounts have
been paid by the petitioner, and those amounts have not
been given credit to. It is further the case of the petitioner
that the business of the petitioner in respect of which tax is
demanded under the provisions of the Kerala General Sales
Tax Act, 1963, and which form subject matter of Ext.P1
revenue recovery proceedings should have been included in
the Amnesty Scheme, which is currently in force. It is
pointed out that if the terms of the Amnesty Scheme are
applied to the petitioner, the petitioner will be in a position
to clear the liability. It is also pointed out that the tax
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liability arising out of the business carried on by the
petitioner ought to have been included with the terms of the
Amnesty Scheme, as the bar hotels were subject matter of
regulation and were even directed to be closed down for a
fairly long period on account of the Covid-19 Pandemic. It is
also pointed out that after reopening the business, the
petitioner was permitted to sell only beer and wine and this
has also affected the business of the petitioner drastically.
3. The learned Government Pleader points out that this
Court had considered the question as to whether a direction
can be given to include liabilities arising out of conduct of a
particular business within the terms of the Amnesty Scheme
now in force, and this Court had taken the view in judgment
dated 27-09-2024 in W.P(C)No.33901 of 2024 that the said
question is a policy matter of the Government, which can be
considered only by the Government, and the Court cannot
issue a mandamus directing that liabilities arising out of
conduct of a particular business should also be included
within the terms of the Amnesty Scheme, if it is not so
included.
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4. The learned counsel appearing for the petitioner
would submit, in reply, that if this Court has already taken
the view that the question as to whether liabilities arising
out of conduct of a particular business should be included or
not within the terms of the Amnesty Scheme is a policy
matter of the Government, the petitioner may at least be
permitted to raise this point before the competent authority.
It is submitted that Ext.P4 has already been filed by the
petitioner and the same is pending consideration.
5. Having heard the learned counsel for the petitioner
and the learned Government Pleader, I am of the view that
this writ petition can be disposed of directing that Ext.P4
shall be considered by the 1st respondent.
6. Accordingly, this writ petition will stand disposed of
directing that Ext.P4 shall be considered by the
1st respondent after affording an opportunity of hearing to
the authorised representative of the petitioner. It is also
directed that if any amount had been paid by the petitioner
after the issuance of Ext.P1 revenue recovery notice, such
payment shall also be given credit to, if the recovery
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proceedings are to be continued against the petitioner.
Considering the fact that the petitioner is facing the revenue
recovery proceedings, the 1st respondent shall endeavour to
take a decision on Ext.P4 within a period of six weeks from
the date of receipt of a certified copy of this judgment.
Again considering the submission of the learned counsel for
the petitioner that substantial amounts have been paid after
the revenue recovery proceedings were initiated, it is
directed that further coercive proceedings shall remain
suspended till a decision is taken on Ext.P4 by the
1st respondent.
Writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE
ats
2024:KER:83093
APPENDIX OF WP(C) 39243/2024
PETITIONER'S EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE AUCTION NOTICE
DATED 22/8/2019 ISSUED BY THE 6TH
RESPONDENT
EXHIBIT P2 THE RELEVANT PAGES OF THE KERALA FINANCE
ACT, 2024.
EXHIBIT P3 THE TRUE COPY OF THE KERALA AMNESTY
RULES NOTIFIED IN THE OFFICIAL GAZETTE.
EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION
DATED 19/10/2024 SUBMITTED TO THE
RESPONDENTS.
