Shitha Santhosh vs The State Tax Officer
2024 Latest Caselaw 31983 Ker

Kerala High Court

Shitha Santhosh vs The State Tax Officer on 7 November, 2024

Author: P Gopinath

Bench: P Gopinath

                                                    2024:KER:83217

               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. 38326 OF 2024
PETITIONER:
          SHITHA SANTHOSH,
          AGED 47 YEARS
          PROPRIETOR, M/S. METALS, 446B, 446 C, KMC ROAD,
          PERAMBRA, KODAKARA, THRISSUR DISTRICT, PIN - 680 689.

          BY ADVS.
                     MAHESH V.MENON
                     RAJITHA V.K



RESPONDENTS:

    1     THE STATE TAX OFFICER,
          STATE GOODS AND SERVICES TAX DEPARTMENT, IRINJALAKUDA,
          PIN - 680 121.

    2     THE JOINT COMMISSIONER (APPEALS),
          STATE GOODS AND SERVICES TAX DEPARTMENT,
          GOODS AND SERVICES TAX COMPLEX, POOTHOLE, THRISSUR,
          PIN - 680 004.

    3     THE COMMISSIONER OF STATE GST,
          STATE GOODS & SERVICES TAX DEPARTMENT, TAX TOWERS,
          KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM,
          PIN - 695 002.

    4     STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
          GOVT. SECRETARIAT, THIRUVANANTHAPURAM,
          PIN - 695 001.

    5     UNION OF INDIA,
          REPRESENTED BY SECRETARY TO GOVERNMENT,
          MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),
          NORTH BLOCK, NEW DELHI, PIN - 110 001.

          BY ADV. THUSHARA JAMES (SR GP)

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.11.2024, THE COURT ON 07.11.2024 DELIVERED THE FOLLOWING:
                                                   2024:KER:83217
WP(C) 38326/2024                 2


                         JUDGMENT

The petitioner has approached this Court being

aggrieved by the fact that the petitioner is unable to file a

further appeal against Ext.P3 order under Section 112 of the

Central Goods and Services Tax/State Goods and Services

Tax Acts (CGST/SGST Acts) on account of the fact that the

Tribunal to hear such appeals has not so far been

constituted. It is thus that the petitioner is before this Court

challenging the order of the Original Authority as confirmed

by the First Appellate Authority.

2. The Senior Government Pleader submits that the

first appeal filed by the petitioner was dismissed on the

ground of delay and not on the merits of the matter. It is

submitted that in such circumstances it is doubtful as to

whether the Tribunal can grant any substantial relief to the

petitioner.

3. The learned counsel for the petitioner submits, in

reply, that the right to file an appeal against the order of the

First Appellate Authority is a statutory right available to the 2024:KER:83217

petitioner, and if the petitioner were to remit 10% of the

disputed tax, the demands will remain stayed until the

matter is decided by the Tribunal.

4. Having heard the learned counsel for the petitioner

and the learned Senior Government Pleader, I am of the

view that the petitioner can be permitted to file an appeal

against the order of the First Appellate Authority. Though

the learned Senior Government Pleader is right in pointing

out that the First Appellate Authority has not decided the

matter on merits, on a reading of Section 112 of the

CGST/SGST Acts, I find no restriction placed on the right to

file an appeal before the Tribunal even in cases where the

First Appellate Authority had rejected the appeal on the

ground of limitation. The petitioner has a case that the

appeal ought not to have been dismissed on the ground of

delay. However, it is for the Tribunal to consider whether

any substantial relief can be granted to the petitioner as and

when the Tribunal is constituted and the petitioner files an

appeal before the Tribunal.

5. Therefore, this writ petition will stand disposed of 2024:KER:83217

directing that if the petitioner were to remit 10% of the

disputed tax, within a period of two weeks from today,

recovery of further amounts shall remain suspended till the

appeal is disposed of by the Tribunal (yet to be constituted),

provided the petitioner files such an appeal before the

Tribunal within a period of one month from the date on

which the Tribunal is constituted.

Writ petition is disposed of as above.

Sd/-

GOPINATH P. JUDGE ats 2024:KER:83217

APPENDIX OF WP(C) 38326/2024

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THIS ORDER NO:

32ASCPS6145E1ZX/2018-19 DATED 25.10.2022

Exhibit P2 A COPY OF THE APPEAL PETITION DATED 18.03.2024

Exhibit P3 A COPY OF ORDER OF DISMISSAL OF APPEAL