Kerala High Court
Sivankutty Nair vs The Assistant State Tax Officer on 11 March, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
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WA NO. 409 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946
WA NO. 409 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 5.7.2024 IN WP(C)
NO.24099 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SIVANKUTTY NAIR
AGED 57 YEARS
1, KINARUVILA VEEDU, MATHILIL, PERINAD KOLLAM,
PIN - 691601
BY ADVS.
K.KRISHNA
ACHYUTH MENON
RESPONDENTS/RESPONDENTSS:
1 THE ASSISTANT STATE TAX OFFICER
TAX PAYER SERVICES CIRCLE, STATE GST DEPARTMENT,
KOLLAM EAST, ASHRAMOM, KOLLAM, PIN - 691002
2 THE EXECUTIVE ENGINEER
TRAVANCORE DEVASWOM BOARD, WORKS DEPARTMENT,
KOTTAYAM, PIN - 686001.
3 THE TRAVANCORE DEVASWOM BOARD
NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY
ITS SECRETARY, PIN - 695003
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WA NO. 409 OF 2025
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4 THE CHIEF ENGINEER
TRAVANCORE DEVASWOM BOARD, WORKS DEPARTMENT,
THIRUVANANTHAPURAM, PIN - 695003.
5 THE COMMISSIONER OF STATE GST
STATE GOODS & SERVICES TAX DEPARTMENT, SALES TAX
COMPLEX, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM, PIN - 695002
6 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN
- 695001.
BY ADV G.BIJU, SC FOR TDB
OTHER PRESENT:
Sr. GP SRI.V K Shamsudheen
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Easwaran S., J.
This intra-court appeal is preferred by the writ petitioner
aggrieved by the dismissal of WP(C) No.24099/2024 by judgment
dated 5.7.2024.
2. The brief facts necessary for the disposal of the appeal are
as follows:
The appellant is a contractor who had executed a contract with the
Travancore Devaswom Board. On 22.12.2023, the
appellant/petitioner was issued with a show cause notice under
Section 73(1) of the Central Goods and Services Tax Act/State Goods
and Services Tax Act, 2017. By Ext.P2, the appellant showed cause to
the said notice. However, rejecting the explanation given by the
appellant/petitioner, the authority proceeded to pass Ext.P3 order on
20.04.2024, which was impugned in the writ petition.
3. The main ground of challenge before the Single Bench was
that the authority had not considered the reply in its proper
perspective and the rate of tax imposed on the petitioner was incorrect.
The learned Single Judge who considered the writ petition found that
the writ petition was not maintainable, especially since the same did
not fall within the four exceptional clauses enumerated for bypassing
the alternative remedy and maintaining the writ petition. Accordingly,
the writ petition was dismissed.
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4. In the appeal before us, the appellant contends that the
learned Single Judge ought not to have dismissed the writ petition and
that the order passed by the proper officer was contrary to notification
No.20/2017-Central Tax (Rate) dated 22.8.2017. It is also pointed out
that if the reply of the appellant was considered in its proper
perspective, there would be no liability arising out of the transaction.
5. Heard Smt.Krishna K., the learned counsel appearing for
the appellant, and Sri.V.K.Shamsudheen, the learned Senior
Government Pleader appearing on behalf of the State.
6. On consideration of the rival submissions raised across the
bar, we are of the view that the appeal has to fail for the reason that,
in the nature of the contentions raised by the appellant/petitioner
before the writ court, the writ petition was not the proper remedy
against Ext.P3 order. From the pleadings in the writ petition, we find
that the appellant had no case that the order of assessment was
without jurisdiction, nor there has been a violation of the principles of
natural justice. Though it is contended before us that the reply
submitted by the appellant was not properly considered by the
authority before passing the order of assessment, we find that the said
ground is not sufficient to entertain a writ petition against the order
of assessment. We further find that the appellant/petitioner was given
an opportunity of a personal hearing, which he failed to avail.
Therefore, we are of the considered view that the learned Single Judge
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was perfectly justified in dismissing the writ petition on the ground of
availability of alternate remedy.
7. At this point of time, the learned counsel appearing for the
appellant/writ petitioner submits that the appellant may be given an
opportunity to avail the alternate remedy of preferring the appeal and
that the period that is spent before this Court may be excluded for the
purpose of computing the limitation. In the light of the aforesaid
request, we feel it is only appropriate for the petitioner to seek
exclusion of the period spent before this Court for the purpose of
computing the period of limitation by preferring an appropriate
application along with the statutory appeal. It would be open for the
appellate authority to consider the said request, in accordance with
law, and we see no reason as to why the appellate authority would not
consider the said request, if any, made before it.
Subject to the above, we are of the view that there is no merit in
the appeal and accordingly, the same is dismissed.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR,
JUDGE
Sd/-
EASWARAN S.,
JUDGE
jg
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WA NO. 409 OF 2025
PETITIONER ANNEXURES
Annexure A COPY OF WORK AGREEMENT EXECUTED BETWEEN
THE TRAVANCORE DEVASWOM BOARD TO THE
APPELLANTDTD. 18-04-2015
