Kerala High Court
M/S. Neo Classic Cruise And Tours (P) Ltd vs Deputy Commissioner (Intelligence) on 16 January, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2025:KER:3342
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
WP(C) NO. 1602 OF 2025
PETITIONER:
M/S. NEO CLASSIC CRUISE AND TOURS (P) LTD
GF-6, 67/4323, SWAPNIL ENCLAVE,
SHANMUGHAM ROAD, ERNAKULAM DISTRICT,
KOCHI, PIN - 682031
REPRESENTED BY ITS MANAGING DIRECTOR,
NISHAYJITH.K.JOHN
BY ADVS.
K.J.ABRAHAM
ARAVINDAKSHAN K.R.
NIKHIL JOHN
RESPONDENTS:
1 DEPUTY COMMISSIONER (INTELLIGENCE),
STATE GST DEPARTMENT, 2ND FLOOR,
KURIEKAL BUILDING, EDAPPILLY P.O,
ERNAKULAM DISTRICT, KOCHI, PIN - 682024
2 DEPUTY COMMISSIONER
ADJUDICATION-1, STATE GST DEPARTMENT,
STATE TAX COMPLEX, PERUMANNOOR P.O,
THEVARA, ERNAKULAM DISTRICT, PIN - 682015
BY ADV. JASMIN M.M.
GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.01.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2025:KER:3342
W.P.(C). No.1602 of 2025
-:2:-
BECHU KURIAN THOMAS, J.
---------------------------------------
W.P.(C). No.1602 of 2025
---------------------------------------
Dated this 16th day of January, 2025
JUDGMENT
Petitioner challenges Exhibit-P5 order issued under Section 74
of the Central Goods and Services Tax Act, 2017 (for short, 'the Act').
2. Petitioner is a company engaged in providing tour packages
like breakfast cruises, lunch and dinner cruises through the back waters.
Various specialised packages are also offered by the petitioner. While
classifying the services, petitioner classified itself as a tour operator.
However, a show cause notice was issued on 29.07.2024, alleging that
the petitioner ought to have classified itself as a 'houseboat service
operator' taxable at the rate of 18% and had instead classified itself as a
tour operator to be taxed at the rate of 5%. It was alleged that the said
suppression was revealed only through an investigation. Consequent to
a detailed objection filed by the petitioner as Exhibit-P2, the impugned
order was issued under Section 74 of the Act, which is produced as
Exhibit-P5.
3. Sri. Abraham K.J., the learned counsel for the petitioner,
vehemently contended that neither the show cause notice nor the
impugned order reflect any circumstance for initiating proceedings
2025:KER:3342
under Section 74 of the Act, as there is no fraud, willful misstatement or
suppression. It was also submitted that Section 74 of the Act has been
invoked solely for the purpose of avoiding the restriction on the period of
limitation, and there is nothing to indicate any fraud, willful
misstatement or suppression. It was further submitted that, the
impugned order was passed without verifying the records and has
proceeded in a unilateral manner, thereby violating the principles of
natural justice.
4. Smt. Jasmin M.M., the learned Government Pleader, on the
other hand, contended that the impugned order is appealable under
Section 107 of the Act. It was also submitted that considering the
specific factual findings of the assessing authority in the impugned order
at paragraph 8 indicating the reasons for invoking of Section 74 of the
Act, this Court ought not to exercise the jurisdiction under Article 226 of
the Constitution of India.
5. On a consideration of the rival contentions, this Court
notices that the impugned order refers to specific reasons for invoking
the powers under Section 74 of the Act. The correctness or otherwise of
those reasons cannot be gone into in this proceeding under Article 226
of the Constitution of India, as those are disputed facts. The normal
remedy for an aggrieved person against an order issued under Section
2025:KER:3342
74 of the Act is to prefer an appeal under Section 107 of the Act.
6. Though the learned counsel for the petitioner vehemently
relied upon instruction No.05/2023 issued by the Central Board of
Indirect Taxes & Customs, which indicates that proceedings under
Section 74 of the Act can be invoked only when there is fraud, willful
misstatement or suppression of facts to evade tax. Bearing in mind the
Explanation to Section 74, I am of the view that the contentions now
urged are matters which will have to be agitated in an appeal provided
under the statute and not take recourse to the extraordinary remedy
under Article 226 of the Constitution of India.
7. In such circumstances, I find no merit to exercise the
jurisdiction under Article 226 of the Constitution of India and relegate the
petitioner to pursue his statutory remedies.
The writ petition is dismissed with the above observations.
Sd/-
BECHU KURIAN THOMAS
JUDGE
Jka/16.01.25.
2025:KER:3342
APPENDIX OF WP(C) 1602/2025
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE CLARIFICATION ISSUED BY
THE CHIEF COMMISSIONER NO.IV/16/06/2017-
CO(TVPM) DATED 16.08.2017
Exhibit P2 TRUE COPY OF THE DETAILED SHOW CAUSE
NOTICE IN CASE ID:AD321123005976C DATED
29.07.2024 ISSUED BY THE 1ST RESPONDENT
Exhibit P3 TRUE COPY OF THE SUMMARY SHOW CAUSE
NOTICE IN FORM DRC-01 DATED 31.07.2024 IN
REF NO:ZD320724032518H
Exhibit P4 TRUE COPY OF THE REPLY DATED 26.08.2024
SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT
Exhibit P5 TRUE COPY OF THE ORDER U/S.74 AND SUMMARY
OF ORDER IN FORM GST DRC-07 WITH ANNEXURE
DATED 30.11.2024 PASSED BY THE 2ND
RESPONDENT
