Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946 WP(C) NO. 17202 OF 2024 PETITIONER:
NEDUMPARAMBIL ANTHAPPAN BABU, PROPRIETOR, M/S. OMEGA GRANITE HUB, PUNKUNNAM, THRISSUR, PIN – 680 002.
BY ADVS.
R.SREEJITH K.KRISHNA ACHYUTH MENON PADMANATHAN K.V.
RESPONDENTS:
1 STATE TAX OFFICER, STATE GST DEPARTMENT, THIRD CIRCLE, THRISSUR, PIN – 680 004.
2 JOINT COMMISSIONER (APPEALS), STATE GST DEPARTMENT, POOTHOLE, THRISSUR, PIN – 680 004.
3 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI, PIN – 110 001.
4 CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, GST POLICY WING, NORTH BLOCK, NEW DELHI, REPRESENTED BY PRINCIPAL COMMISSIONER (GST), PIN – 110 001.
5 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.
BY ADVS THUSHARA JAMES (SR GP) SREELAL N. WARRIER (SC)(FOR R4) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.17202/2024 2 JUDGMENT This writ petition has been filed challenging the constitutional validity of Section 16(2)(c) of the Central Goods and Services Tax/State Goods and Services Tax Act, 2017 (CGST/SGST Act). The said issue stands covered against the petitioner by the judgment of this Court in M.Trade Links v. Union of India; 2024 KLT OnLine 1624.
2.
The learned counsel appearing for the petitioner, however, submits that the benefit of Circular No.183/15/2022-GST, dated 27-12-2022, issued by the GST Policy Wing, Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Government of India, has not been extended to the petitioner and the petitioner may be given an opportunity to establish that the benefit of the aforesaid Circular must be extended to him in the facts and circumstances of this case.
3.
The learned Senior Government Pleader very fairly admits that the impugned orders, namely Ext.P5 assessment order of the 1st respondent and Ext.P6 First Appellate Order of the 2nd respondent, do not appear to have considered the issue in the light
W.P.(C)No.17202/2024 3 of the Circular referred to above.
4.
Taking into consideration the above submissions, this writ petition will stand ordered rejecting the challenge to the constitutional validity of Section 16(2)(c) of the CGST/SGST Act, but, however, setting aside Exts.P5 and P6 orders and remitting the assessment of the petitioner for the year 2017-2018 to the file of the 1st respondent, who shall pass fresh orders in the matter after affording an opportunity of hearing to the petitioner and after taking note of the provisions contained in the Circular referred to above. Fresh orders shall be passed by the 1st respondent, as directed above, within a period of two months from the date of receipt of a certified copy of this judgment.
Writ petition is ordered accordingly.
Sd/- GOPINATH P.
JUDGE ats
W.P.(C)No.17202/2024 4 APPENDIX OF WP(C) 17202/2024 PETITIONER’S EXHIBITS Exhibit P1 COPY OF INTIMATION NOTICE ISSUED BY THE 1ST RESPONDENT DTD. 04-08-2020.
Exhibit P2 COPY OF REPLY TO THE NOTICE SUBMITTED BY THE PETITIONER DTD. 20-08-2020.
Exhibit P3 COPY OF SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DTD. 28-12-2021.
Exhibit P4 COPY OF REPLY TO SHOW CAUSE NOTICE SUBMITTED BY THE PETITIONER DTD. 02-02-2022.
Exhibit P5 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT DTD. 03-08-2022.
Exhibit P6 COPY OF APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DTD. 31-01-2024.
Exhibit P7 COPY OF ORDER IN WPC NO. 286/23 OF THIS HON'BLE COURT DTD. 06-01-2023