[Cites 2, Cited by 0]
Kerala High Court
P K Sudhakaran vs State Of Kerala on 25 March, 2026
Author: Devan Ramachandran
Bench: Devan Ramachandran
2026:KER:26269
WA NO. 2783 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 25TH DAY OF MARCH 2026 / 4TH CHAITHRA, 1948
WA NO. 2783 OF 2025
AGAINST THE JUDGMENT DATED 09.10.2025 IN WP(C) NO.37027 OF
2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN WPC:
P K SUDHAKARAN ,
PROPRIETOR OF PANATTU REGENCY, KUZHIKATTUSSERY,
THAZHEKKAD, CHALAKKUDY, THRISSUR, PIN - 680697
BY ADV SRI.TOMSON T.EMMANUEL
RESPONDENTS/RESPONDENTS IN WPC:
1 STATE OF KERALA,DEPARTMENT OF TAXES, SECRETARIAT,
THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, PIN - 695001
2 COMMISSIONER OF STATE TAX ,
STATE GST DEPARTMENT, TAX TOWER, KILLIPALAM,
KARAMANA P O; THIRUVANANTHAPURAM, PIN - 695022
3 DEPUTY COMMISSIONER ,
TAX PAYER SERVICES DIVISION, STATE GST DEPARTMENT,
IRINJALAKUDA, THRISSUR, PIN - 680125
2026:KER:26269
WA NO. 2783 OF 2025 2
4 DEPUTY COMMISSIONER (ARREAR RECOVERY) ,
TAX PAYER SERVICES, SGST DEPARTMENT, POOTHOLE,
THRISSUR, PIN - 680004
SMT THUSHARA JAMES, SR. GP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2026, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2026:KER:26269
WA NO. 2783 OF 2025 3
JUDGMENT
DEVAN RAMACHANDRAN, J.
The appellant impugnes the judgment of the learned
Single Judge in W.P.(C) No.37027 of 2025, asserting that his
client is entitled to challenge Exhibit P2 - Assessment Order,
Exhibit P7 - order on Rectification Application and Exhibit P10 -
penalty proceedings, under the provisions of the KGST Act,
because the fundamental order among them, namely Exhibit P2,
had been issued without affording his client any opportunity of
being heard.
2. Sri. Tomson T. Emmanuel- learned counsel for the
appellant, argued that Exhibit P2 order is unconstitutional and
inept in law because, it has been issued denying his client an
opportunity of being heard; and consequently, that a writ
petition before this Court, challenging it, as also the
consequential orders and proceedings, becomes maintainable.
He relied upon various precedents, to argue that the law has
been well settled that the mere availability of an alternative
remedy would not preclude a writ petition before this Court,
when the impugned order is one issued without competence, or
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in violation of the principles of natural justice. He contended
that this is a classic case where Exhibit P2 order, and all
consequential proceedings, were issued in violation of the
principles of natural justice.
3. Smt. Thushara James - learned Senior Government
Pleader, however, submitted that the afore imputations of the
appellant are not factually true because, as limpid from Exhibit
P2, the appellant was offered a personal hearing on 12.08.2024,
but that he never filed his reply or appeared in person. She
argued that, in such circumstances, the Competent Authority
had no other option, but to complete the proceedings.
4. We must say that, in abstract sense, we are in full
affirmation with the the principles of law asserted by Sri.
Tomson T. Emmanuel, as any legally trained mind would be.
Normally, when the assessee has an effective statutory
alternative remedy, it is for him to invoke it, rather than
approach this Court under Article 226 of the Constitution of
India; and the well recognized exemption to this is when the
impugned order is vitiated on account of violation of principles of
natural justice; or has been issued by an Authority incompetent
in law; or is contrary to the Constitutional imperatives.
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5. In the case at hand, it is the specific argument of the
appellant that he had not been given an opportunity of being
heard. However, going by Exhibit P2, this, prima facie, stands
belied; but it is certainly available to him to prove it to the
contrary through cogent evidence.
6. That apart, it is also without requirement for us to
restate that an order which is imputed to be wrong and hence
illegal, cannot be challenged before this Court, invoking writ
jurisdiction. The proper remedy would be always to approach
the competent statutory Authority.
7. In fact, going by the impugned judgment, we notice
that the appellant himself had sought for a ''breathing time'' to
invoke his statutory remedies, which has been acceded to by the
learned Single Judge .
8. In such circumstances, we see no reason to differ with
the holdings of the learned Single Judge; though we feel it
appropriate to grant some more time to the appellant, taking
note of the fact that this appeal has been pending for a few
months before us.
9. Resultantly, even when we dismiss this appeal, we
order that the recovery proceedings against the petitioner,
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based on Exhibits P2, P7, P10 and P11, will be stand deferred for
another one month from the date of receipt of a certified copy of
this judgment.
10. Needless to say, the right of the appellant to seek
interim orders in this appeal as per law is also reserved. Further,
it will also be open to the appellant to seek the exclusion of the
time spent in litigation before this Court, qua the period of
limitation.
11. After we dictated this part of this judgment, Sri.
Tomson T. Emmanuel made a plea that it be ordered that the
statutory appeal his client will file, be disposed of within a
specified time frame. Though we cannot prescribe any particular
time limits, we are certain that if any appeal is to be filed by the
appellant, in terms of the liberty reserved to him herein, then the
same required to be disposed of without any avoidable delay and
expeditiously.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
BASANT BALAJI
JUDGE
ajt
